Force Short of War in Modern Conflict: Jus Ad Vim 9781474444231

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Force Short of War in Modern Conflict

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Force Short of War in Modern Conflict Jus ad Vim

Edited by Jai Galliott

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Edinburgh University Press is one of the leading university presses in the UK. We publish academic books and journals in our selected subject areas across the humanities and social sciences, combining cutting-edge scholarship with high editorial and production values to produce academic works of lasting importance. For more information visit our website: edinburghuniversitypress.com © editorial matter and organisation Jai Galliott, 2019 © the chapters their several authors, 2019 Edinburgh University Press Ltd The Tun – Holyrood Road 12(2f) Jackson’s Entry Edinburgh EH8 8PJ Typeset in 11/13 Adobe Sabon by IDSUK (Dataconnection) Ltd, and printed and bound in Great Britain. A CIP record for this book is available from the British Library ISBN 978 1 4744 4421 7 (hardback) ISBN 978 1 4744 4423 1 (webready PDF) ISBN 978 1 4744 4422 4 (paperback) ISBN 978 1 4744 4424 8 (epub) The right of Jai Galliott to be identified as the editor of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988, and the Copyright and Related Rights Regulations 2003 (SI No. 2498).

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Contents

Notes on Contributors Acknowledgements 1. An Introduction to Force Short of War Jai Galliott

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Part I: The Need for Recalibration 2. Asymmetry in Modern Combat: Explaining the Inadequacy of Jus ad bellum and Jus in bello Jai Galliott and Cassitie Galliott 3. The Fog of War: Violence, Coercion and Jus ad vim Danielle Lupton and Valerie Morkevičius 4. The Responsibility to Protect and Uses of Force Short of War Eamon Aloyo

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Part II: Options for Recalibration

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5. From Jus ad bellum to Jus ad vim: Recalibrating Our Understanding of the Moral Use of Force Daniel Brunstetter and Megan Braun

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6. A Framework for an Ethics of Jus ad vim in the Context of Human Rights Christopher Ketcham

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7. Jus ad vim: The Morality of Military and Police Use of Force in Armed Conflicts Short of War Seumas Miller

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8. Just War Theory, Armed Force Short of War and Escalation to War John Lango

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9. Jus ad vim and the Question of How to do Just War Theory Christian Braun and Jai Galliott

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Part III: Problems for Recalibration 10. On the Redundancy of Jus ad vim: A Response to Daniel Brunstetter and Megan Braun Helen Frowe

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11. Are Novel Jus ad vim Principles Needed to Judge Military Measures Short of War? Shawn Kaplan

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12. Moral Injury, Mission-Drift and Limited War James Gillcrist and Nick Lloyd

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13. Pacifism and Targeted Killing as Force Short of War Nicholas Parkin

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14. In Defence of Jus ad vim: Why We Need a Moral Framework for the Use of Limited Force Daniel Brunstetter

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Index

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Notes on Contributors

Eamon Aloyo is Lecturer at Leiden University and Senior Researcher at The Hague Institute of Global Justice. Christian Braun is Research Fellow in Philosophy at Durham University. Megan Braun is a Rhodes Scholar pursuing International Relations at Oxford University. Daniel Brunstetter is Associate Professor of Political Science at the University of California, Irvine. Helen Frowe is Professor of Practical Philosophy and Director of the Stockholm Centre for the Ethics of War and Peace. Cassitie Galliott is PhD candidate at Monash University. Jai Galliott is Research Group Leader – Values in Defence & Security Technology at the University of New South Wales at the Australian Defence Force Academy and Visiting Fellow at the Centre for Technology and Global Affairs in the Department of Politics and International Relations at Oxford University. James Gillcrist is Researcher in the Department of Philosophy at The University of Kansas. Shawn Kaplan is Associate Professor and Chair of Philosophy at Adelphi University. Christopher Ketcham is Research Fellow in the Values in Defence & Security Technology Group at the University of New South Wales at the Australian Defence Force Academy. John Lango is Emeritus Professor of Philosophy at Hunter College, City University of New York. vii

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Nick Lloyd is Reader in Military and Imperial History at Kings College, London. Danielle Lupton is Assistant Professor of Political Science at Colgate University. Seumas Miller is Professorial Research Fellow at Charles Sturt University and the 3TU Centre for Ethics and Technology at Delft University of Technology, The Hague. Valerie Morkevičius is Associate Professor of Political Science at Colgate University. Nicolas Parkin received his PhD in political philosophy and applied ethics from the University of Melbourne and the Centre for Applied Philosophy and Public Ethics in 2013. He has worked at the University of Melbourne, Deakin University, RMIT University and the University of Hong Kong. His research interests include pacifism, the ethics of war and peace, public ethics, and moral dilemmas and tragedies.

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Acknowledgements

To my son, Louis-Aleksandr, I am sorry for being an absent-minded father. This book would not exist without the invaluable contribution of Daniel Brunstetter.

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1

An Introduction to Force Short of War

Jai Galliott

There is little in the discipline of philosophy with which all agree. Some philosophers maintain that there is a God, others do not. Some say that space and time are something real outside our minds, others maintain the opposite. These divergences are just as common within moral philosophy. Surprising and sometimes dumbfounding divergences occur among the moral beliefs of different societies, and some would say acceptably so, while others might argue that some actions or inactions are objectively right or wrong. And there are, of course, fundamental moral disagreements within individual societies as well. Within the Western liberal democracies, people hold radically opposing views on abortion, euthanasia, sexual relations, the right to bear arms, the fair distribution of wealth and many other such issues. These differing conclusions can come about for many reasons. Sometimes it is something such as pride or stubbornness, habitual attachment to certain ideas and ways of thinking, or a distrust of another thinker who has not had an adequate opportunity to realise the benefits of other modes of thought. Sometimes one philosopher simply has not taken the time to read the other philosopher carefully enough. Of course, if such deficiencies were the primary reason for disagreement amongst philosophers, this would be particularly unfortunate. Nor is the chief intellectual cause of disagreement among philosophers that there is no truth or certainty possible within philosophy, but rather that the human path to wisdom concerning core moral principles necessarily passes through disagreement about them. It is difficult work simply to form the right disagreements in philosophy, and so not all contentious issues get as far as to the resolution of those 1

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disagreements, or a set of commonly recognised principles to guide them, which finally bring us to wisdom. But there is at least one contentious moral issue for which there is a widely accepted moral theory, where the path to wisdom has been largely walked by others, an issue that has been embraced for many centuries by both religious and secular thinkers, pervading Western thought. Military ethicists will know that the issue is war and the theory is just war theory. ‘Just war theory’ refers both to a tradition of thought and to a doctrine that has emerged from that tradition. At the summary level, just war theory maintains that war is both morally justifiable in principle and often morally justified in fact. In other words, the basic notion that underlies the just war framework is that war is sometimes morally acceptable. Of course, if we grant this, we need some account of when war is permissible and when it is not, and of what is permissible in war and what is not. The principles of just war theory provide that account and are supposed to distinguish just from unjust wars and just from unjust means of waging war. Their function is to restrain both an overeager and overactive interest in participation in war and in the means of war once war has commenced. There is no one theory of the just war, nor one canonical statement of the just war doctrine, but a core set of principles that has emerged over the course of centuries, with an endless number of slight variations in the countless books, articles and opinion pieces that discuss the ethics of war in general, the morality of specific wars or acts within specific wars. Typically, the theory distinguishes between the justification for the resort to war (jus ad bellum) and justified conduct in war (jus in bello). In most presentations of the theory of the just war there are six principles of jus ad bellum, each with its own label: just cause, legitimate authority, right intention, necessity or last resort, proportionality and reasonable hope of success. Jus in bello comprises two principles: discrimination and, again, proportionality. For some decades, the most influential defence of the philosophical assumptions of the traditional theory and the best elucidations of these principles have originated from Michael Walzer’s classic book, Just and Unjust Wars (2006), which also presents his understanding of the theory’s implications for a range of issues, spanning pre-emptive war, humanitarian intervention, terrorism and nuclear deterrence. 2

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Introduction

Just war theory, allied as it has been with international humanitarian law, and implicit in the rules of engagement of most nations, has sustained a remarkable consensus in modern times and traditionally experiences a resurgence of interest every time an actor resorts to the significant use of armed force. These principles articulate a common understanding of the morality of war and, over many centuries, have been adapted to deal with the challenges posed by new military technologies, tactics and strategies, signalled by the development of spears, bows and arrows, trebuchets and other mechanical artillery, to the creation of gunpowder, cannons, firearms and other modern weaponry, all of which increased the range between the attacker/s and the attacked. The theory, owing to its evolution in tandem with the body of law that has states rather than individual persons as its subjects, and the fact that it deals with large-scale warfare, is routinely invoked in public debates about wars and military policies. When both the Episcopal Church and the United States Catholic Bishops released their written opinion in the early 1980s on the morality and religiosity of nuclear deterrence, they judged the practice primarily by reference to just war principles, unsurprising given their Greco-Roman and Judeo-Christian roots, but which the Catholic Bishops expounded and analysed in academic detail. The soldiering profession also take the theory quite seriously, with just war theory taught in United States’, United Kingdom’s and Australia’s principal military academies, often by officers who themselves publish scholarly work that seeks to elucidate or apply it. Furthermore, it has historically benefitted from high profile political support, including from such luminaries as Winston Churchill, with his lofty rhetoric and appeals to terror, proportionality and the probability of success. This popular support extends to the current day. Shortly before the United States invaded Iraq in 2003, former President Jimmy Carter argued in an international newspaper that an invasion would be wrong because it would violate the just war requirements of last resort, discrimination, proportionality and legitimate authority. Days later, when President Bush announced the commencement of hostilities as something akin to a declaration of war, his speech embodied just war principles, as did Bush Senior’s when he launched the first Gulf War in collaboration with coalition forces. When Barack Obama delivered his Nobel Peace Prize acceptance speech, he too referred convincingly to the concept of 3

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a just war. It has also since been utilised by the US administration to justify drone killings and special forces raids. But the consensus behind just war theory is slowly beginning to wane and the relevance of the theory gradually eroding – we are returning to the human path of deriving wisdom through a reassessment of the relevant moral principles, that is, passing through serious disagreement about the applicability of just war theory for the first time in recent thought. Military and political leaders, as well as those practitioners on the ground, have begun to find that there is limit to the extent to which the traditional principles and usual rules of war found in just war theory and related normative instruments can be stretched to cover modern conflict. Many will suggest that this is in large part, or in its totality, due to the changing character of war. Most wars fought in recent times have not been of the kind to which the theory most readily applies, namely those between regular armies deployed by developed states. Many have instead been between the regular army of a state and nonstate or rogue forces. This description fits the major segments of the United States’ wars in Vietnam, Afghanistan and Iraq, as well as the recent smaller-scale civil conflicts in Libya, Syria and disturbances elsewhere. There is also the continuing threat posed by decentralised terrorist organisations such as Islamic State. The use of force short of war is now commonplace in response to these threats, in large part owing to casualty averseness and the explosion of emerging technologies, most notably drones, lethal autonomous weapon systems and cyber. These responses often involve the selective or limited use of military force to achieve political objectives, which can assume many forms. This volume is particularly concerned with those that involve the use of kinetic force, rather than soft war tactics that might also be governed by just war theory. These include the deployment of emerging technologies for precision targeting, targeted killing/assassination, special-forces raids, limited duration bombing campaigns or missile strikes, and ‘low intensity’ counterterrorism and counterinsurgency operations that involve the use of lethal force. These types of conflict, especially those that tend to focus on individuals rather than categories of people and involve the employment of emerging military technologies, are somewhat resistant to moral evaluation within the state-centric framework of the traditional just war theory. However, there is another reason for 4

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Introduction

just war theory’s decline. This derives from the fact that the wars in Vietnam, the Persian Gulf, Yugoslavia, the Middle East and Central Asia, as well as the development of the emerging technologies, have provoked a resurgence of work critical of just war theory by philosophers trained in the analytic tradition. When these philosophers consulted the traditional theory to evaluate these wars and uses of emerging technologies within them, they discovered problems and challenges that had somehow eluded classical just war thinkers. They have subsequently sought to develop a more plausible theory of the just war along parallel but diverging lines. One of these, the ‘revisionist’ account, though not yet fully coherent or defended, is in certain respects justified by a reversion to the classical theory that was superseded by the traditional theory several centuries ago, say its proponents. It returns, for example, to the idea that it is individual persons rather than states who kill and are killed in war, and that they, rather than their state, bear primary responsibility for their participation and action in war. It is based on the idea that the actions of an individual fighting for what is an objectively unjust cause cannot possibly be separated from the justice of the individual’s cause. The revisionist approach has gained considerable support among contemporary just war theorists and its advocates suggest that what is needed for it to become the dominant mode of thought in assessing the morality of war is (1) for the relevant academic community to cease its habitual commitment to what Walzer labelled the moral equality of combatants: the idea that combatants on all sides in a war have the same rights, immunities and liabilities, and (2) a reformulation of the principles of jus in bello in a way that aligns with the individualist, liability-based account proposed by the revisionists. But the revisionist account is yet to be adopted beyond the small community of academic philosophers and scholars who have devoted themselves to it, seemingly because the theoretical underpinnings of the school of thought are not reflective of the real world of warfare. In actual practice, the kind of changes the revisionist camp seek to impose are viewed by many as unworkable and idealist. Indeed, maintaining a line between objectively just and unjust causes is nigh impossible, except in a range of circumstances that is much smaller than revisionists willingly admit. For the traditional just war theorist, what the revisionists think is a framework for liability in wartime is a framework for 5

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liability in something much nearer to peacetime. Nevertheless, defenders of just war theory were being challenged to provide an explanation of how the overarching phenomenon represented by the use for force short of war might be accommodated within the just war framework. In response, the preface to the fourth edition of Walzer’s Just and Unjust Wars (2006: xiv) revolves around the important distinction between ‘measures short of war’ like those already described and those that represent ‘actual warfare’. Even though the former are typically judged as acts of war according to international law, it is ‘common sense to recognize that they are very different from war’, and the argument which follows is that such acts may well be differently and more frequently justified on account of the fact means short of war will often come without ‘war’s unpredictable and often catastrophic consequences’ (Walzer 2006: xiv). Walzer (2006: xv) goes on to argue that: The argument about jus ad bellum needs to be extended, therefore, to jus ad vim. We urgently need a theory of just and unjust uses of force. This shouldn’t be an overly tolerant or permissive theory, but it will certainly be more permissive than theory of just and unjust war.

The permissions associated with the just use of force short of war, he suggests, will be closely tied to questions about prevention. Such war is not morally sanctionable under either just war theory or international law, but the exercise of preventative force short of war seems anecdotally justifiable when faced with particularly brutal regimes and threats. Nevertheless, common sense also dictates that when force short of war is utilised, it must be limited in much the same way that the conduct of war is limited, namely to shield civilians. But in comparison with acts of war, acts of force short of war will also typically entail a reduced risk of harm to one’s own troops and therefore a lower military-economic burden to a nation’s citizens and statesmen. The correlate is that use of force short of war will be easier to justify than the normal means and measures of warfare, though this does mean that all morally justifiable actions are morally obligatory and that said actions are without potentially compounding consequences. This volume brings together original research on the ethics of war from leading international authors and combines them with 6

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the relevant landmark papers on force short of war in one convenient volume to question the moral, legal and political status of the use of force short of war, the strategic situations in which such force is best used and, most importantly, whether existing traditions and rules are sufficiently robust to deal with the challenges that the use of limited force entails. More specifically, one of the aims of this collection is to assess and analyse the challenges and opportunities for conceptualising and operationalising Michael Walzer’s theory of jus ad vim, which will require significant restructuring and the adaptation of the existing just war framework principles of jus ad bellum and jus in bello. The first part will concern itself with the need to recalibrate just war theory, while the second and third parts will demonstrate that while it is undoubtedly possible to create a framework of jus ad vim or something similar, it is not without difficulty, especially in the tension of how permissive the framework ought to be if it is to be of value. The difficulty notwithstanding, it hoped that this volume provides new avenues for thinking about new modes of achieving political outcomes and the ethics of robotic, cyber and other novel military technologies in the context of military and political decision-making. Leading the first section on the need to recalibrate just war theory, Jai and Cassitie Galliott seek to explain the inadequacy of the war paradigm’s jus ad bellum and jus in bellum in terms of dealing with the asymmetry problem in modern technological conflict. The main argument is that the use of technological force short of war generates a morally problematic ‘radical asymmetry’ which brings justice and fairness into conflict, or at least into competition, with the aims of just war, even in the face of revisionist challenges, and must therefore be resolved by a new just war tenet and related principles. Danielle Lupton and Valerie Morkevičius follow, arguing that a lack of conceptual clarity within ethics regarding how to categorise and define challenges hinders the just war tradition’s ability to elucidate which ethical standards apply to these alternative situations and consequently argue that the category of jus ad vim is essential. Their contribution to the volume is to demonstrate how this might be a move back to the past in certain ways, and in so proving, bridge the gap between international relations theory and just war thinking. They establish clear conceptual categories of conflict, drawing extensively on the existing international relations literature to show that the line between 7

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war and peace is murkier than the tradition would suggest. Drawing on research from across international security, they show that many acts within international relations do not clearly fall into the simple categories of war and peace. Eamon Aloyo then argues that the norms contained in the responsibility to protect (R2P) permit and, in some cases, require uses of force short of war under the first, second and third pillars. This holds both in times of peace and as alternatives to war. Daniel Brunstetter and Megan Braun’s landmark paper on jus ad vim appears at the head of the section exploring options for the recalibration of just war theory. Together, they ask, what would a theory of jus ad vim that counters the shortcomings of the jus ad bellum framework look like? In the second part of the article they contend that a viable theory of jus ad vim can be constructed by recalibrating jus ad bellum criteria and adding a new principle – the probability of escalation. However, they warn that jus ad vim raises a host of tensions that just war theorists must be mindful of, and point to some challenges to which thinking in terms of jus ad vim may itself give rise. Next, Christopher Ketcham argues that John Rawls’s ‘The Law of Peoples’ can serve as a place to begin to develop a framework for an ethics for force short of war in the context of human rights (Rawls 1993). Seumas Miller then compares police use of force and military use of force and in so doing constructs what he refers to as the law enforcement model (LEM) and the military combat model (MCM) (respectively) and then applies these models of the use of force to a number of non-standard, but by now all too familiar, contexts of armed conflict involving insurgents. He argues that neither model is entirely fit for purpose in these contexts. In such context, he suggests, the notion of jus ad vim gets some purchase since they may well call for a ratcheting down of military force and a ratcheting up of police use of force. John Lango follows, arguing against Brunstetter and Braun’s contention that a new principle – the probability of escalation – is required. More specifically, he argues that received jus ad bellum principles should be revised, but that such an escalation principle should not be added. Concluding the section, Christian Braun and Jai Galliott suggest that the concept of jus ad vim, which triggered the most recent battle between Walzerians and revisionists, may start a conversation between the two camps. Especially because jus ad vim imagined as uses of force short of war seems to be situated 8

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Introduction

in-between the moralities of war and peace, between military conduct and policing, it may function as jumping-off point where Walzerians and revisionists meet on neutral ground. Critiquing Walzerians for their legalist reading of casuistry and revisionists for their ahistorical and impractical reasoning, the article argues for a return to a traditional casuistry. In the final section examining the problems for recalibrating just war theory and dealing with force short of war, Helen Frowe controversially argues that the set of principles proposed by Brunstetter and Braun is redundant, and that the jus ad vim project stems largely from an implausible understanding of the principles of jus ad bellum. She begins by outlining Brunstetter and Braun’s arguments in favour of jus ad vim, and then goes on to show that each of these arguments fails, and that properly understood the traditional principles of jus ad bellum do the necessary work in restricting and permitting force. Shawn Kaplan then aims to show how jus ad vim advocates fail to demonstrate, from the standpoint of the ‘legalist paradigm’, the need to adopt novel jus ad vim principles that are conceptually distinct from those contained in jus ad bellum and jus in bello. Though the introduction of precision technologies may potentially influence proportionality calculations, they do not in themselves, he says, alter the conditions of just cause, proper authority, proportionality, necessity or right intention. As of a change of pace, James Gillcrist and Nick Lloyd then focus on the psychological toll of killing without clear and convincing justification, the predominance of this toll in relation to force short of war, and why both just war theorists and decision-makers must account for this facet of warfare. Nicholas Parkin then takes us to the extreme, asking not whether traditional principles or jus ad vim are necessary to accommodate things like targeted killing, or indeed whether jus ad vim may result in creased harm, but whether force short of war can be justified in the first place. To conclude the volume, Daniel Brunstetter responds to the many criticisms of his account of jus ad vim. He begins by briefly tracing the initial development jus ad vim principles as distinct from jus ad bellum principles, offering insight into what the initial attempt to theorise about jus ad vim set out to accomplish. In the process, he identifies the three criticisms levied against jus ad vim – that we do not need a new theory, that it is too permissive and that the probability of escalation principle is contained within 9

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other just war principles. To push the debate forward, he responds to these criticisms with a defence of jus ad vim as a broad research agenda that investigates the specific moral dilemmas associated with limited force and the threat of escalation. He concludes by suggesting that jus ad vim can be not only a language of evaluation, but also a precise language of critique as states use and abuse the weapons available in their arsenals to respond to ever-evolving global threats.

References Rawls, John (1993), ‘The Law of Peoples’, Critical Inquiry, 20: 1, 36–68. Walzer, Michael (2006), Just and Unjust Wars: A Moral Argument with Historical Illustrations, New York: Basic Books.

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2

Asymmetry in Modern Combat: Explaining the Inadequacy of Jus ad bellum and Jus in bello1

Jai Galliott and Cassitie Galliott

The debate about the impact of emerging military technologies on the normative instruments guiding their use is failing to keep pace with the rise of the technology. Therefore, all the key players, including ethicists, lawyers and roboticists, are keen to offer their views on the use of said technologies. Our argument is directed specifically against unmanned aerial vehicles (UAVs). Nevertheless, the points we make apply broadly to all categories of unmanned weaponry, including cyber-systems and lethal autonomous weapons. Some are opposed to the use of UAVs, citing a range of ethical, legal and operational issues, while others argue for their ethically mandated use. B. J. Strawser fits into this latter category. He develops a principle of ‘unnecessary risk’, from which he argues that we have an ethical obligation to employ UAVs if we can do so without incurring a loss of capability. Strawser defends his argument against several potential objections, most questionably, the argument that the use of distance weaponry such as drones, against another state without distance weaponry, crosses some moral threshold that makes the combat immoral. Utilising Jeff McMahan’s work on the inequality of combatants, the argument is that there are no grounds for a ‘fair fight’. However, this chapter defends the asymmetry thesis against arguments made by Strawser and, in so doing, reformulates it in terms of just war principles, notably jus ad bellum. It will demonstrate that if the asymmetry reaches a certain level, the justification for resorting to war may be removed and that policing 13

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action, or the development of an account of use of force separate from war, remains the only option.

From technological asymmetry to radical technological asymmetry Technological asymmetry, that is, a disparity of the capacity of nations to project technologically mediated force, is nothing new, at least in the outdated weak-versus-strong sense. Despite this, we can highlight a few conflicts that illustrate humanity’s progression along the scale of technological asymmetry. The Battle of Agincourt is often cited as a striking historical example of the sort of effect superior military technology can have on the battlefield. It was at Agincourt that the English achieved victory over the numerically superior French army. It was thought that the English were outnumbered by almost six to one, with the French having troop strength of approximately 30,000 men (Barker 2005: 320). Yet what is striking is that due to the longbow, which allowed its users to launch a barrage of powerful arrows at a greater than normal distance, the English suffered only a few hundred war dead, while the French lost many thousands (Barker 2005: 320). William Shakespeare later depicted this conflict as ruthless and unchivalrous, a depiction which reflects some of the concerns of this chapter. According to Shakespeare, ruthless and ungallant conflict was essentially one of the paradoxes for the king; something he must wrestle with when protecting his empire (Taylor 1982).2 Another engagement representative of technological asymmetry was that which took place between well-armed colonial forces and an army of traditional African warriors at Omdurman, on the upper Nile, at the end of the nineteenth century (Headrick 2010: 275). Under the command of General Horatio Kitchener, the colonial forces fought a vastly larger armed force and managed to achieve a decisive victory, which was critical to the British conquering Sudan. The Egyptian forces under Kitchener’s command carried breachloading rifles and the British carried repeating rifles (which allowed for faster firing), maxims (machine guns) and field cannon. Their opponents, on the other hand, had only spears, swords and muskets (Headrick 2010: 275). Unsurprisingly, the Anglo-Egyptian casualties were few and far between, while their opponents lost 14

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approximately 10,000 troops (Raugh 2004: 275). Showing his concern about asymmetric war, Winston Churchill, who fought in this conflict, later wrote about his disillusionment with modern technology and how dishonourable the Omdurman ‘slaughter’ was (Churchill 1899).3 The Gulf War was a key point in the progression toward radical technological asymmetry, in the more modern sense of the term. Executed by a United Nations coalition force, led by the United States and financed mostly by Saudi Arabia, the Gulf War was waged against Iraq primarily in response to its invasion and annexation of Kuwait. While the Iraq of the 1990s was far from a defenceless state, its weaponry was simply not as advanced as that of the Coalition (Finlan 2008: 84). The Gulf War saw the introduction of advanced networked technologies including fighter jets, surveillance aircraft and so on. It was widely portrayed as a ‘telepresent’ war conducted by ‘armchair generals’ via satellite (Murphie and Potts 2003: 172). There was little contest in this war, with the Coalition achieving a decisive victory with very few losses. The Gulf War essentially served as a template for conducting modern asymmetric warfare and the Kosovo War was its corollary. This war, aimed at bringing down the Milosevic regime and protecting Kosovo from Serbian aggression, began with several United States ships and a British submarine (operating under the North Atlantic Treaty Organization, NATO) firing cruise missiles. Following this, allied aircraft launched a campaign of precision-guided munitions attacks, which were aided by the use of drones (Mahnken 2008: 183). Given the technological asymmetry that existed, NATO’s aims were met with no military casualties on the allied forces’ side (Kemp 2007: 60). Accordingly, some theorists have labelled both Kosovo and Iraq as being ‘no risk’ wars. In both cases this is an obvious misnomer. No war, at least no war that we can conceive of today, can be totally risk free. War will always pose some risk of harm to both combatants and non-combatants. What these theorists mean to convey is that the states which wage this sort of technologically asymmetric warfare are taking significantly less risk and that such warfare has progressed significantly from the chessboard image of war that once existed. If technological asymmetry is already a common feature of modern warfare as suggested, one might then wonder whether the technological asymmetry generated by unmanned systems really 15

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represents a ‘radical’ departure from previous levels of asymmetry. Is firing a missile from a drone more ethically problematic than dropping a 500-pound bomb at 20,000ft or pressing a button that launches a cruise missile? The answer is, straightforwardly: ‘yes’. What makes the former morally repugnant is the ability to target a specific individual, at great distance, with the knowledge that you are invulnerable to retaliation. Unmanned systems make it possible to remove the human actor from the area of conflict – all the while allowing the operators of these systems to target people and infrastructure almost as if they were present in the field themselves – taking us as close to the notion of a ‘risk free’ warfare as we are likely to get at any time in the foreseeable future. This is unlike the conflicts with Kosovo and Iraq, in which pilots remained in the air, thus somewhat putting themselves at risk. Objectors to this sort of risk free war say that an issue arises when unmanned systems are used against another force, which does not possess such technology and when the level of life-threatening risk incurred between the warring parties becomes so imbalanced that we cross a symmetry threshold which makes the fight (and thus the use of the weapon) intrinsically unjust. To illustrate what people find problematic and to test our moral intuitions, let us consider the following thought experiment. State X, holding what it thinks is a just cause, declares war on State Y. State X possesses an arsenal of unmanned systems. Rather than sending in many traditional human warfighters, State X sends in its unmanned weaponry, starting with reconnaissance drones (ranging from wasp sized micro-unmanned aerial vehicles to more traditional high altitude vehicles) to surveil the area and provide intelligence. Once this information is transferred wirelessly across the military network and analysed by super-computers, State X sends in various drones armed with technologically sophisticated munitions to kill the combatants and destroy the infrastructure of State Y. State Y, for whatever reason, does not have an arsenal of unmanned weaponry and has no enemy combatants within range of its conventional weaponry, since its enemy has a purely technological presence. So, at the moment at which State X commences their remote attack, State Y essentially is doomed to fail in defending itself.4 It is this kind of scenario – where one side can inflict damage on the other with virtual impunity – that ethicists find morally 16

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troubling. The issue is how such unmanned conflict could possibly be considered ethical. There are two grounds on which the legitimacy of asymmetrical unmanned warfare might be questioned and these will be considered separately. The first has to do with the notion of fairness and equality in warfare and how it might be undermined by radical technological asymmetry. The second, which is equally important, has to do with what will be called ‘evoked potential’: that is, the spontaneous, potentially dangerous and morally questionable alternative asymmetric response/s possibly evoked by the sort of technological asymmetry which is of concern to us. This potential can apply to both state and non-state actors. It is relevant to note here that there are many unresolved debates concerning the difference between these two sorts of actors and whether non-state actors can act in accordance with just war principles in the same fashion as state actors. Here though, the discussion is restricted primarily to illustrating the moral problem with radical technological asymmetry and makes no claims about this sub-debate.

Fairness in the Absence of Mutual Risk Strawser presents the most comprehensive account of the issues of fairness as they relate to unmanned systems. However, given that he discusses these issues as a rebuttal to the case against unmanned systems, we first need to briefly overview his case for unmanned systems. Strawser claims that if it is possible for a military pursuing a just war sanctioned action to use unmanned systems in lieu of the manned equivalent, without incurring a loss of capability (by which he means just war fighting capability), then they have an ethical obligation to do so. This contention stems from what Strawser labels the ‘principle of unnecessary risk’, which holds that: in trying to accomplish some objectively good goal, one must, ceteris paribus, choose means that do not violate the demands of justice, make the world worse or entail more risk than necessary to achieve the good goal in question (Strawser 2010: 344). This principle has a fair deal of prima facie appeal. When we apply it to warfare with unmanned systems, it seems rather uncontroversial to suggest that any technology that exclusively minimises harm to warfighters – that is, while imposing no additional ‘costs’ of another kind – would be morally better. Notwithstanding its prima facie appeal, the problem with applying this 17

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principle is that, while unmanned systems may indeed minimise immediate harm or the risk of it, there may be other unforeseen consequences that countervail the ethical obligation for their use. The introduction of radical asymmetry to unmanned warfare is one such countervailing factor. Strawser responds to the fairness problem using two arguments, the first of which is perhaps less substantial than the second.5 His first response is to say that, if the issue concerns whether justified combat should be a ‘fair fight’ to some extent, this presents no problem for the use of unmanned systems, in principle, because military engagements have been anything but fair for quite some time. He gives the example of a modern-day F-22 pilot killing a tribal warrior wielding a rocket-propelled grenade (Strawser 2010: 356). However, this example fails to support Strawser’s response. While Omdurman, Iraq and Kosovo all confirm that unfairness is not new, it can be argued along the lines presented in the previous section that radically asymmetric unmanned conflicts introduce a new, or at least differently disturbing, level of unfairness. In the above example involving the F-22, there is a pilot in the air. Therefore, the tribal warrior still has a human to target, regardless of how futile his or her efforts to kill that pilot may be. By contrast, the introduction of unmanned platforms removes most – if not all – warfighters from the field, allowing them to overwhelm the enemy at no comparable risk to themselves, using purely technological means. Strawser’s second, and main, line of reply to the fairness objection is that, even if unmanned systems can be said to have introduced a new and disturbing level of asymmetry, this still does not present a significant problem for their use (Strawser 2010: 356). His reasoning appears to be the following: if one combatant is ethically justified in their effort and the other combatant is not, then it is good and just that the justified combatant has the asymmetrical advantage associated with the use of unmanned systems. In his view, this is because combatants fighting for an objectively unjust cause have no moral right to engage in violent action, or even defensive action, against combatants fighting for an objectively just cause. There is a moral difference between the two, he would say. Here, Strawser is invoking recent work by Jeff McMahan (2009),6 which presents a fairly novel reinterpretation of classical just war theory. While it is not clear whether McMahan’s work ultimately 18

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has a significant impact on the central issue, it is nonetheless worthwhile working through his response thoroughly. Doing so will provide context for our overall concern with asymmetry, which is a concern regarding the justice of resorting to war in such scenarios. For the ensuing discussion, it will be helpful to briefly recount the traditional theory of just war and the challenges that McMahan’s revision raise for it. Recall that the traditional theory of just war embodies two main sets of principles that provide a rigorous moral framework. The first concerns the justice of the resort to war (jus ad bellum) and the second concerns just and fair conduct in war (jus in bello). Under the jus ad bellum principles, a state intending to wage war must possess just cause, right intention and proper authority. The war must also be proportional, a likely success and a last resort. Under jus in bello principles, activities in war must be discriminate and, again, proportional. Under the traditional just war theory, these two central pillars are considered logically independent from one another. Most importantly for our discussion, this means that it is permissible for a combatant fighting for an objectively unjust cause (an unjust combatant), to fight against a combatant fighting for an objectively just cause (a just combatant), as long as they do not violate the principles of jus in bello. In other words, just and unjust combatants are taken to share the same moral status in war. This is commonly referred to as ‘the doctrine of the moral equality of combatants’ (Walzer 1977: 34–40). It is essentially a doctrine of battlefield equality. The reason combatants are not held responsible for the decision to go to war under this doctrine is because they may, among other things, have been under duress or lacked the requisite information to determine whether their cause was genuinely just, so they are instead judged exclusively on how they fight in the ensuing conflict. Importantly, Strawser, following McMahan, would reject this notion of equality between combatants. McMahan claims that it seems counterintuitive to say that those pursuing an objectively unjust aim are morally on par with those pursuing an objectively just aim. It is not as though McMahan thinks that we should abandon just war theory altogether. Rather, he argues that the principles of jus in bello should not be considered to be logically independent of those of jus ad bellum. Remember that the jus in bello convention requires that fighting in war be both discriminate and proportional. 19

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McMahan believes that it is virtually impossible to fight in a war, while lacking a just cause, without violating one of these principles (McMahan 2009: 15–31). Put most simply, he says that unjust combatants breach the discrimination principle because just combatants are not legitimate targets, since they are innocent in a special sense. Just as a police officer retains their innocence when apprehending a lawbreaker, a just combatant retains her/his innocence in fighting an unjust combatant. Unjust combatants also breach the proportionality principle, because without a just cause, there is no objective good enough to outweigh any harm done. So, for McMahan, this is why the jus in bello principles must be considered in relation to the jus ad bellum principles and also why combatants are not considered to be moral equals in war. Let us label this the ‘non-equality thesis’. Strawser argues from the non-equality thesis that it is good that the just combatant has the asymmetric advantage associated with the use of unmanned systems and is better protected. For Strawser, overwhelming the enemy with a barrage of drones and condemning them to what is going to be certain defeat is not a morally objectionable act. This is because the just combatant is morally justified in taking the life of the unjust combatant, while the unjust combatant is not justified in taking the life of the just combatant, even if the unjust combatant appears to fight in accordance with jus in bello. Therefore, according to Strawser, if a particular military force fighting for a justified cause has a better, more advanced and more effective weapons systems than that of their unjustified adversary, they should not refrain from using it because it is seen as ‘unfair’ or ‘unchivalrous’. They are, by the above reasoning, justified in getting that weapons system into the field as quickly as they can to aid in force preservation measures and to improve the likelihood of winning. Thus, responding to the critic’s question: ‘how can this war be just?’, Strawser would say that unjust combatants, who are incapable of fulfilling the requirements of jus in bello, are owed no special consideration when it comes to using unmanned systems. This is because they are contributing to a moral wrong, whether or not they are consciously aware of it. Like Walzer (2006: 41–3), many will not be convinced by the non-equality thesis, which underpins Strawser’s denial that the asymmetry poses a problem for drone employment. The argument proposed is that, in line with traditional thought on the topic, 20

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jus ad bellum and jus in bello should be thought of as logically independent and that we are correct in making the prima facie presumption that there exists moral equality between combatants. As Walzer so eloquently puts it: What Jeff McMahan means to provide in this essay is a careful and precise account of individual responsibility in time of war. What he actually provides, I think, is a careful and precise account of what individual responsibility in war would be like if war were a peacetime activity. (Walzer 2006: 43)

These comments highlight the following important point: there is something about war that makes the moral standards that apply to it different from those in normal civilian life. That is, there is something about war which permits soldiers to do things that are normally considered immoral. There are numerous reasons as to why this might be so. Many theorists think it fit to talk in terms of the forfeiture of rights, that is, soldiers waiving rights they would normally hold in peacetime. However, there are a number of deep problems connected to this approach, particularly concerning the inalienability of certain rights, namely that to life. Another reason is that there is something in the imperfect relationship between individuals and states which allows for those on both sides to fight justly regardless of the objective justness of their cause. The question, of course, is whether the kind of activity discussed falls between the bounds of war and peace. This is a matter to which we later return. But, for the moment, let us suppose that this is wrong so that that unjust combatants do, in fact, act wrongly when targeting just combatants and therefore the just combatants are entitled to defend themselves against the overall wrong being perpetrated by the unjust combatants. It is not entirely clear how relevant this actually is to the problem. In other words, it may be that these questions of fairness and equality – raised by Strawser at the jus in bello level – are insufficient to explain or deal with what is fundamentally problematic about the asymmetry in question. A deeper problem for those advancing the fairness objection consists in pointing out that using unmanned systems in place of the manned equivalent removes an important element of the justice of resorting to war, an element that seems important regardless of whether the non-equality thesis succeeds. More specifically, 21

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when the technological imbalance reaches a certain level, it may actually override any justification for war. To both clarify the fairness objection and draw out the issues in greater detail, it will be helpful to look briefly at Paul Kahn’s ‘paradox of riskless warfare’. This paradox is said to arise when the ‘pursuit of asymmetry undermines reciprocity [in terms of risk]’ (Kahn 2002: 2). Kahn says that any fighting between combatants needs to be qualified in terms of the mutual imposition of risk (Kahn 2002: 3–4). Kahn’s paradox occurs at the level of individual combatants or groups of combatants and is underpinned by a belief in something akin to the moral equality of combatants, which Strawser refutes. However, for the moment the reader can put this matter aside, because the aim in discussing Khan’s work is simply to elicit some thought on the general role of risk. Kahn essentially says that, without the reciprocal imposition of risk, the moral basis for injuring or killing others is called into question. It is not that he advocates a concept of war of the chessboard variety, which has equally configured forces. Rather, what he is saying is that the right to engage in potentially lethal conduct only holds where there is some degree of mutual risk involved. He seems right in using the notion of risk and thus threat as a condition. Sparrow discusses this idea and deploys it at the level of individual responsibility. He notes that in wartime, wounded soldiers are generally considered immune from attack, as they no longer pose an immediate or near-term threat. Similarly, those who raise the white flag and surrender are also considered immune from attack, because they likewise pose no threat (Sparrow 2011: 127). In both cases, threat (or lack thereof) is at the core of their immunity. A full account of Kahn’s ideas cannot be provided here, but it is evident that the degree of threat plays an important role in establishing and maintaining any justification to cause harm or kill. This means that if one side’s armed forces are incapable, or rendered incapable, of posing an adequate threat to the other side, the more powerful side’s moral justification for targeting the weaker side’s armed forces is void (Kahn 2002). Yet, as mentioned earlier, Kahn’s argument is grounded at the individual level. He neglects the role of risk at a higher level, but it is exactly this sort of risk that we need to consider in order to refute Strawser’s argument. As noted by Sparrow as well, the kind of asymmetry which is relevant here is that which exists at the macro level, namely at the level of 22

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armed forces considered as a whole (Sparrow 2011: 128). This is especially true for our discussion of the use of unmanned systems. The examples given earlier, of the soldiers who are wounded or have surrendered, perhaps convey the idea that the sort of threat about which we are talking is located at the micro level, that is, between individual combatants. This is the level at which Strawser’s discussion takes place. However, with reference to the earlier scenario, the threat that is relevant here is that between State X and State Y considered as a whole, not that between the individual combatants of State X and State Y. This is an important point, because if there is an inadequate level of risk between States X and Y considered as a whole, any reasons that the individual combatants of these states have for taking on any risk will be far less compelling. In just war terms, the issue is the following: when the level of asymmetry in war reaches a certain level, a state may be in violation of jus ad bellum, the principles of which remain important despite the challenge posed by Strawser’s McMahanian argument. Why is this so? Up until this point, we have been talking about the ‘deep morality of war’. This is distinct from Walzer’s conventional morality of war in that it revolves around the idealistic notion of a system based on objective justice and individual liability. It is this idealistic notion that is responsible for the non-equality thesis and much of Strawser’s argument concerning unmanned systems. However, McMahan concedes that there may be laws of war (which embody the traditional just war principles) to which we should adhere for prudential reasons. These principles will, if consistently and accurately observed, tend to limit the destructiveness of war. This is the reason why the jus ad bellum principles remain relevant. Yet, McMahan would say that there might be cases in which a given act of violating these jus ad bellum principles, when viewed in isolation, might be permitted by the deep morality of war. However, if this act of violation were to lead to other violations, this would make the said act imprudent, because it would fail to limit the destructiveness of war.7 This two-tiered approach is problematic. Just war principles already provide a transitional morality, which will hopefully lead us toward a better state of peace. In granting that we have prudential reasons for adhering to the laws of war, McMahan seems to acknowledge the need for a transitional morality. This seems to mean that his deep morality 23

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of war serves little purpose, other than to remind us of the end goal, that is, a better state of peace.8 His deep morality of war cannot be allowed to constantly trump the transitional morality of war. A full discussion of the reason why we ought to be reluctant to sharply contract prudence with this more idealistic deep morality associated with revisionist theorists is beyond the scope of this book. The point made here, which is rather uncontroversial, consists in suggesting that, even alongside a deep morality of war and the non-equality thesis – and in any warfare, even against the unjust – the just side must adhere to jus ad bellum principles. They cannot do whatever they like by appealing to whatever they consider to be the objective justness of their cause. This point is inescapable. Having argued that the jus ad bellum principles remain important even when fighting an objectively unjust opponent, there are two principles that need to be given attention when considering waging a war with unmanned systems. Both principles are grounded in consequentialist considerations (although one can equally well think of them in deontological terms). The first is the principle of last resort. It is generally recognised that, once war is unleashed, it can often get out of control and take on its own destructive power, with devastating consequences. Therefore, war should only ever be fought when necessity demands it; that is, when there is no other alternative. However, waging war without any risk to one’s own troops clearly calls into question one’s adherence to this principle. Where there are such high levels of asymmetry created by technology, as in our scenario, war surely cannot be considered a last resort. In most cases, State X would presumably have other less lethal options available. For example, State X could make clear and obvious to its opponent the fact that it possesses significantly superior technology, perhaps by putting on a non-lethal display of its technological capabilities. This may result in both States reaching some sort of peaceful political negotiation and settlement. Second, there is the principle of proportionality. In the jus ad bellum sense, this principle asks us to look at the harm our proposed military action is likely to cause and weigh it against the harm that we hope to avoid. But, where the technological imbalance is so radical – that is, where those on the receiving side of an attack are virtually unable to retaliate – it seems that the harm that the technologically superior state hopes 24

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to thwart will in many cases be so insignificant that it would present dire problems for the proportionality calculus. In other words, unmanned war of the sort described in the earlier scenario is rendered unjust. Of course, the deployment of unmanned force can be more limited in nature and need not cross the symmetry threshold, but the escalation of war poses a constant risk.

Evoked Potential For the reasons described above, war does not necessarily need to be a ‘fair’ or perfectly symmetrical fight, as represented by the game of chess. But war arguably needs to be a fight of some description if it is to have any hope of fulfilling the jus ad bellum principles of last resort and proportionality (Enemark 2013: 60). Regrettably, it is not immediately clear whether the recent drone wars meet this description. In fact, in many ways, their employment seems to facilitate the waging of politically motivated violence that, as it turns out, more closely resembles extermination. This section aims to outline a potential counterargument to the asymmetry objection or, more particularly, to the proportionality principle. The other principle, which pertains to matters of last resort, will remain untouched. In pre-empting the asymmetry objection and clarifying what exactly is at issue, it will be shown that we are presented with another potential problem for radically asymmetric unmanned warfare and thus have a further reason to question its legitimacy. As we already know, at the jus ad bellum level, the principle of proportionality requires that we weigh the harm that the proposed military action is likely to cause with the harm that we hope to avoid. Highlighted in the previous section was the issue that the harm faced was not great enough to justify the attack in question. However, one might object that the only reason the harm was not seen to be so significant was because we failed to look beyond the initial pre-provocation harm and failed to accurately project the longer-term consequences. It might be said that a state contemplating waging war must think more clearly, when projecting the outcomes of a possible conflict, about how its actions will impact and/or provoke the enemy – including how its actions and decisions will influence the enemy’s will and response. In other words, the stronger state ought to factor in evoked potential: the spontaneous, possibly dangerous and sometimes morally questionable 25

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responses caused by radical technological asymmetry. The problem is, of course, that the extent to which we are required to project consequences under the proportionality principle is not obvious. After all, it is remarkably difficult to predict what the enemy’s decisions and responses will be prior to initiating a conflict, and traditionally they have not been given much weight.9 However, since evoked potential is indirectly linked to radical technological asymmetry and given that states have an obvious interest in not being subjected to asymmetric tactics, we will, for the sake of argument, entertain the idea that a state should foresee such responses and include them in its calculation of the proportionality of its proposed actions. If nothing else, in dealing with the objection, we should actually demonstrate – presumably to the dismay of those who would object to the earlier treatment of the fairness problem – that evoked potential might tip the proportionality scale too far in the other direction. That is, if we must consider evoked potential, a radically asymmetric attack may involve so much potential harm that the war will be considered unjust. In order to explore the likely responses from a state under radically asymmetric unmanned attack, let us revisit and develop the scenario sketched earlier. State X, a democratic state having what it takes to be a just cause, wages war against an undeveloped State Y. It seems that State Y, which disputes the claims underlying State X’s just cause, has a right to try and defend itself. State X wages war with unmanned systems, but because State Y lacks its own arsenal of unmanned weaponry, it cannot respond in kind. Furthermore, because the war is of the unmanned variety, State Y cannot respond in what has traditionally been thought to be the ‘normal way’ – that is, by targeting the troops on the ground that are engaged in the ‘business of war’ (Walzer 1977: 43). In exercising its right to self-defence, State Y wants to act in an ethically sanctioned manner, because it is aware that it derives its power from its people, who have a vested interest in acting morally under the social contract that assures their continued wellbeing. But State Y is limited in its pursuit of just war and general ethical aims by its under-developed technology and it must therefore seek alternative ways of responding to the unmanned attack.10 These alternatives are what we must work through to form some idea of what State Y’s response and its probable effects are likely to be and whether, in light of this forward-looking projection, a 26

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radically asymmetric attack remains the most effective and ethical option for State X to achieve its desired goal/s. Killmister argues that, once we have ruled out the extraordinarily unlikely option of unconditional surrender, there is only a limited number of options open to the weaker state in a situation where there exists a radical imbalance in technological resource power (Killmister 2008: 122). In the aforementioned example, the vast technological difference means that State X can quite easily locate and attack State Y’s combatants just because they are likely to be wearing uniforms as well as bearing arms that have easily identifiable characteristics or ‘signatures’. The same task is made rather more difficult for State Y because of their enemy’s purely technological presence. This gives rise to an ethically concerning potentiality which Bob Simpson and Rob Sparrow have labelled the ‘guerrilla problem’ (Simpson and Sparrow 2014: 93–4). In order to avoid being targeted and possibly killed by their opponents who have better surveillance and attack capacities, the combatants of State Y may embrace a common asymmetric tactic and decide that, rather than carry arms openly, they will try to conceal themselves and their weapons amongst the vulnerable civilian population. This tactic has the effect of making it much more difficult and potentially dangerous for State X to abide by the just war principles of discrimination and proportionality. For conventionally weak states, the aim is often to provoke the enemy and then commingle with the civilian population in the hope that the enemy will be driven to continue with attacks causing a large number of civilian casualties and other collateral damage. This will, in turn, undermine both local and international political support for the stronger adversary’s cause. At this juncture, it is important to note that the conventionally weak State Y is not alone in utilising this asymmetric tactic and in shifting the burden of risk onto its civilian population. Drone pilots are regularly commingled with civilians. The most wellknown US drone command centre operates from the Central Intelligence Agency’s (CIA’s) headquarters in Langley, Virginia, whilst Creech and Nellis Air Force bases house similar military operations near Las Vegas, Nevada. Domestic bases also operate in California, Arizona, New Mexico, North and South Dakota, Missouri, Ohio, New York and perhaps elsewhere (Lendman 2012). In early 2013, Fox News reported that new jobs and drone technology were 27

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coming to the former Willow Grove Naval Air Station in Horsham, Pennsylvania (O’Connell 2013). But do drone pilots count as combatants and therefore as appropriate targets for their enemies? This is an important question because, while a good deal has been said about the psychological effects of commingling and protecting those who may be vulnerable to drone strikes, little has been said about protecting the civilians amongst the operators of unmanned platforms. A drone operator who actively tracks and kills enemies is a possible target, because s/he is a participant in combat. However, for a large number of drone operators, their civilian and military worlds are intertwined. Problems about their status arise when an operator finishes her/his shift and goes home. We need to think carefully about whether drone operators are targetable when they are eating, sleeping and picking up the children from school. Conventional combatants do not acquire immunity when they eat or sleep and cannot simply ‘turn off’ their combatant status. But, as drones proliferate around the world and wars become an increasingly part-time endeavour for those engaged in fighting them, we may be forced to reconsider the characteristics and nature of combatant status. Whether or not we consider State X’s drone pilots to be combatants, any story of the sort of technological asymmetry that accompanies the widespread deployment of unmanned systems and the shielding of military assets will necessarily include those in the civilian realm being exposed to what might be perceived to be an unfair level of risk. This is a recurring theme in Andrew Croome’s (2012) Midnight Empire, an espionage thriller that deftly explores drone warfare. In this novel of modern warfare, an Australian drone programmer relocates to the United States to work with a drone team operating at Creech Air Force Base. Soon after he arrives, however, American drone pilots start to die in an usually peaceful residential suburbs of Las Vegas. As it turns out, they are being targeted by their targets. The point highlighted by the novel is that, far from the promise of delivering a safer and more effective remote warfare, unmanned systems may actually bring the battle home by putting those who wage it closer to us than ever before. Over the long term, this may help to foster sympathy between the citizens of warring states, but, in the near future, it is likely to inspire hatred. Additionally, although the killing of drone pilots may not be considered a 28

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violation of present-day just war theory, radical asymmetry may come to cause anger and actions that more closely resemble classical domestic terrorism. In fact, the evidence suggests that drone strikes only strengthen the terrorist cause, making the al-Qaeda brand and radical Islam more attractive to vulnerable and disaffected American Muslims. For instance, there were two young Boston Marathon bombers who cited the drone wars in Iraq and Afghanistan as a motivating factor for their terrorist action (Wilson et al. 2013). Cases like this suggest that we need to take seriously the idea that drones (as currently used) create more terrorists than the number of enemy combatants they kill. Soldiers and statesmen must, therefore, add a corollary to the defence theorem: if one side uses a large fleet of unmanned systems against which the enemy has no real defence, the victims may reciprocate by utilising tactics that render the technologically superior state comparably defenceless. It is not immediately clear whether these tactics will, in all cases, be contrary to the demands of just war theory or unfair on civilians. As mentioned earlier and regarding the first point, there is much debate concerning whether terrorist action can meet just war requirements (Nathanson 2010; Held 2008; O’Keefe and Coady 2002). As for the second point, it needs to be admitted that citizens of technologically advanced democratic countries are on the one hand the ultimate source of the antagonism towards casualties, but on the other hand they are responsible for electing those who authorise war. Citizens may thus be forced to accept that the aforementioned evoked potential is simply a concerning, but necessary feature, of the only sort of warfare they are prepared to sanction. That said, it is the case that, in radically asymmetric conflict, violations of jus in bello are much more likely to occur on either side of the conflict. In relation to our scenario, this may tip the proportionality scale against the waging of war in the first instance. That is, if State Y’s responses can be foreseen, it may again undermine the jus ad bellum justification for State X’s actions. If there is cause to suggest that provoking State Y might cause it to appeal to the abovementioned morally questionable options, State X must think more carefully about what it stands to gain from going to war. Some might object to the level of foresight required by this account. Let us summarise the argument for simplicity’s sake: State Y is doing this bad thing (prosecuting a war with what its 29

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opponent sees as unjust aims) and then, because State X utilises drones as their means of waging war, State Y to does this further bad thing (in this case, harming people near to the place/s from where the drones are operated). It might be said that this is not an argument against State X. The critic might also say that this sort of moral reasoning is pretty strained as an argument against the use of unmanned systems as a just weapon of war. It has been said that a very high degree of certainty would be required about the fact that using drones (an action which has other normative advantages) would necessarily cause State Y to do this further bad thing.11 Furthermore, it has been argued that, even if it can be assured that State Y will do this further bad thing, the moral blame still falls on Y for doing this bad thing, not on X for carrying out a putatively just action via putatively just means. In response to the first section of this argument, it is only necessary to point out that the degree of epistemic certainty involved is already high. History serves as a potent reminder of the fact that technological asymmetry does not preclude enemies with inferior technology from creating and sustaining an impact powerful enough to combat a superpower. In fact, technological asymmetry probably invites such a response from technologically inferior foes, since there are no other options for them. This does not amount to reassigning blame to State X and absolving State Y of moral responsibility for its actions, nor does it open the door for any state to do bad things in the hope that they might get their enemy to cease efforts against them. Rather, this amounts to acknowledging that the harm generated by such wars comes about for predictable and identifiable reasons. This constitutes the first step toward reaching more amicable resolutions to conflicts in the future. Note that this need not be a big problem for Strawser’s main claim per se. Recall what his claim was: if it is possible for a military pursuing a just action to use unmanned systems in lieu of the manned equivalent, without incurring a loss of just war fighting capability, then they ought to do so. Strawser could then simply accept that, if unmanned systems do make military action unjust, they should not be used. This may be true in some cases of radically asymmetric conflict. But the answer is not necessarily crystal clear in all cases. These systems are not yet beyond control or restriction, so we are left in quite a tricky position as to how we might seek to respond to the problem of radically imbalanced levels of mutual 30

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risk, regardless of whether the levels of risk are inadequate or too substantial. We do not want to rule out military operations in every instance. This idea is untenable under the military–state contract and would be rather unwise, because to lay down arms could create an even worse asymmetry problem. The relevant question now is how unmanned systems should be used when the levels of risk are significantly imbalanced. It is a question to which we need to devote more of our attention given the ever-growing technological imbalance between states. One possible response might be to suggest that the militarily dominant state (possessing unmanned systems) allows the weaker state a degree of latitude in their application of the just war principles. However, allowing an enemy to choose an action, which is not as good/ethical as another one, seems counterintuitive and may lead to serious moral transgressions. For instance, it would be wrong for a strong state to allow its weaker enemy to carry out a disproportionate attack because of technological asymmetry. Therefore, we can say with confidence that giving the weaker state a ‘wild card’, so to speak, is not the answer. Another much more respectable and less problematic approach, advocated by David Rodin, is for the militarily dominant state to impose stronger requirements on its own application/s or consideration of the just war principles. This recommends that the stronger state has to meet higher standards of epistemic certainty when waging war. It seems a sensible ethical option. It does not encourage the stronger state to lower protective measures, nor to ‘go easy’ on the enemy, nor to lay down its arms, which is good because there is no virtue in taking risk purely for the sake of risk. What, then, might a war that abides by these stronger norms look like? Kahn suggests that, in cases of such high asymmetry, the solution is for the application of any military force to be very restrained and for it to be more like a form of international policing (Kahn 2002: 4–5). Such action is based on evidence proving guilt beyond reasonable doubt. De-escalation strategies are also to be preferred; very little collateral damage is tolerable and the death of innocents is strictly prohibited. The effect that policing actions have would amount to giving non-combatants a much higher standing than that of drone operators and would imply that the number of strikes is to be limited. However, while fewer wars and more international policing-like activity may sound like an admirable 31

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goal, some would argue that, as a response to asymmetry, this is too restrictive and we must continue to find the right balance. It may be that if cases of asymmetrical conflict should be governed by standards that are more restrictive than those guiding interstate war, but more permissive than those of domestic law enforcement, we should explore the category of jus ad vim (concerning justice of force [short of war]) and assess its relevance to the ethical use of drones and other forms of more limited force. This is, ultimately, what the remaining chapters of this volume seek to do.12

Conclusion The aim in this chapter has been to show that the use of unmanned systems can introduce a morally problematic asymmetry and that, at least in some cases, there are reasons for rejecting the legitimacy of unmanned engagements on grounds that stem from this asymmetry. Further, it has been argued that it is not so easy to justify an overwhelming asymmetric attack based on the supposed nonequality of combatants. A military with great technological power must thus think twice about the threat that their enemy poses. In considering whether radically asymmetric unmanned warfare really is the best option to achieve a military’s desired goal, it must take a long-term and more strategic view of risk, considering all possible evoked responses. It seems clear that there is a role for drones and other remote weaponry, since they have the potential to offer numerous benefits. However, several questions remain concerning their deployment. In relation to the problem posed by asymmetry, we must ask: in what capacity should unmanned weaponry be utilised, to which degree and in accordance with which normative instruments or frameworks?

Notes 1. This chapter is an adapted version of Chapter 7, ‘The Asymmetry Objection’ in Galliott’s (2015) book. 2. The sections immediately before and after the St Crispin’s Day Speech speak of the moral burden of being king, but the whole play can be taken as an anti-war allegory.

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Asymmetry in Modern Combat 3. Based on his later actions as a politician, Churchill obviously thought that even dishonourable weapons had their legitimate roles. 4. Adapted from Killmister (2008). 5. Strawser actually levels three challenges at the ‘problem of fairness’. We will look only first two as they contain his main argument, and the third is rendered false by the discussion of the first two. 6. This recent monograph draws on many papers published over the last decade or so and represents some of McMahan’s clearest thought on the topic. 7. There is a parallel here with the utilitarian argument for torture: if we can torture someone to retrieve information that will save the lives of many people, without anyone finding out and thus setting a precedent for further tortures, then we should do so (under some accounts). 8. For a very interesting discussion concerning McMahan’s ‘deep morality’ and its applicability in our non-ideal world, see Shue (2008). 9. This reflects a more common problem concerning the projection of consequences within broadly consequentialist theories. 10. What if the state does not feel compelled to act ethically? This might call for a different approach from State X, but the method to reach it is essentially the same: it involves considering potential responses and acting in accordance with these. 11. I am indebted to B. J. Strawser for raising this potential objection. 12. Beyond the chapters of this volume, for specific thoughts on drone usage, see: Braun and Brunstetter (2014).

References Barker, Juliet (2005), Agincourt: The King, the Campaign, the Battle, London: Little & Brown. Braun, Megan and Daniel Brunstetter (2014), ‘Rethinking the Criterion for Assessing CIA-Targeted Killings: Drones, Proportionality and Jus ad vim’, Journal of Military Ethics, 12: 4, 304–24. Churchill, Winston (1899), The River War: An Historical Account of the Reconquest of the Soudan, London: Longmans, Green and Co. Croome, Andrew (2012), Midnight Empire, Sydney: Allen & Unwin. Enemark, Christian. (2013), Drones and the Ethics of War: Military Virtue in a Post-Heroic Age, New York: Routledge. Finlan, Alastair (2008), The Gulf War of 1991, New York: Rosen Publishing Group. Galliott, Jai (2015), Military Robots: Mapping the Moral Landscape, Farnham: Ashgate Publishing.

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Force Short of War in Modern Conflict Headrick, Daniel R. (2010), Power over Peoples: Technology, Environments, and Western Imperialism, New Haven: Princeton University Press. Held, Virginia (2008), How Terrorism Is Wrong: Morality and Political Violence, Oxford: Oxford University Press. Kahn, Paul (2002), ‘The Paradox of Riskless Warfare’, Philosophy and Public Policy Quarterly, 22: 3, 2–7. Kemp, Geoffrey (2007), ‘Arms Acquisition and Violence: Are Weapons or People the Cause of Conflict?’, in Chester A. Crocker, Fen Osler Hampson and Pamela R. Aall (eds), Leashing the Dogs of War: Conflict Management in a Divided World, Washington, DC: United States Institute of Peace Press, pp. 53–66. Killmister, Suzy (2008), ‘Remote Weaponry: The Ethical Implications’, Journal of Applied Philosophy, 25: 2, 121–33. Lendman, Stephen (2012), ‘America’s Drone Command Centers: Remote Warriors Operate Computer Keyboards and Joysticks’, Global Research: Centre for Research on Globalisation, 29 April, (last accessed 3 August 2018). Mahnken, Thomas G. (2008), Technology and the American Way of War, New York: Columbia University Press. McMahan, Jeff (2009), Killing in War, Oxford: Clarendon Press. Murphie, Andrew and John Potts (2003), Culture and Technology, London: Palgrave. Nathanson, Stephen (2010), Terrorism and the Ethics of War, Cambridge: Cambridge University Press. O’Connell, Chris (2013), ‘Drone Command Center, 200-Plus Jobs Coming to Horsham’, Fox News, (last accessed 15 December 2015). O’Keefe, Michael and C. A. J. Coady (eds) (2002), Terrorism and Justice: Moral Argument in a Threatened World, Carlton: Melbourne University Press. Raugh, Harold E. (2004), The Victorians at War, 1815–1914: An Encyclopedia of British Military History, Santa Barbara: ABC-CLIO. Shue, Henry (2008), ‘Do We Need a “Morality of War”?’, in David Rodin and Henry Shue (ed.), Just and Unjust Warriors: The Moral and Legal Status of Soldiers, Oxford: Oxford University Press, pp. 87–111. Simpson, Robert and Robert Sparrow (2014), ‘Nanotechnologically Enhanced Combat Systems: The Downside of Invulnerability’, in Bert Gordijn and Anthony Cutter (eds), In Pursuit of Nanoethics, Dordrecht: Springer, pp. 89–103.

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Asymmetry in Modern Combat Sparrow, Robert (2011), ‘Robotic Weapons and the Future of War’, in Paolo Tripodi and Jessica Wolfendale (eds), New Wars and New Soldiers: Military Ethics in the Contemporary World, Surrey: Ashgate Publishing Ltd, pp. 117–33. Strawser, Bradley Jay (2010), ‘Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles’, Journal of Military Ethics, 9: 4, 342–68. Taylor, Gary (ed.) (1982), Henry V, Oxford: Oxford University Press. Walzer, Michael (1977), Just and Unjust Wars: A Moral Argument with Historical Illustrations, Philadelphia: Basic Books. Walzer, Michael (2006), ‘Response to Mcmahan’s Paper’, Philosophia, 34: 1, 41–3. Wilson, Scott, Greg Miller and Sari Horwitz (2013), ‘Boston Bombing Suspect Cites US Wars as Motivation, Officials Say’, The Washington Post, 23 April, (last accessed 15 December 2015).

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3

The Fog of War: Violence, Coercion and Jus ad vim

Danielle Lupton and Valerie Morkevičius

The ‘triumph’ of just war thinking – its re-entry into both academic and political discourse in the West – has led to as much soulsearching as celebrating (Walzer 2002). Many just war thinkers imagine that the just war project is aimed at restricting violence; a careful analysis of a particular case using just war’s ad bellum principles is expected to discourage many a hawkish leader. Yet we know from history that politicians exaggerate threats – and may even be justified in doing so (Fiala 2008: 89; McPherson 2004: 500). As a result, the principle of just cause is frequently ‘abused, rationalized, and manipulated’, sometimes deliberately and sometimes as the result of unconscious biases (Cady 2010: 34). The just cause claims used to legitimise the war in Iraq, for example, have been accused of being based ‘on distortion, exaggeration, and deception’ (Fiala 2008: vii; Hammond 2005: 104). One reason just war principles may be subject to political abuse is that the concept of war itself is treated as a binary concept by contemporary just war thinkers. An event either is or is not war. If it is war, then just war principles are applicable. It if isn’t, they aren’t. The problem, however, is that many foreign policy problems and actions fall short of war, but are nonetheless ethically troubling: sanctions, non-kinetic cyberattacks, threats of force and even targeted drone strikes. Certainly, some thinkers have attempted to apply just war thinking to such cases, but the fit isn’t perfect. Conventional just war thinkers tend to approach this problem by bringing these coercive acts into the war paradigm and 36

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in so doing, implicitly turn these more limited actions into forms of war. Revisionist just war thinkers, claiming that the same set of moral principles ought to govern all coercive actions, turn these limited actions – and war itself – into forms of policing. As political realists, we find both of these positions to be somewhat disjointed from the reality of international relations. Against revisionists, we see the realm of international relations as fundamentally anarchic and hence a morally distinct space from the domestic sphere (Morgenthau 1950: 854). Against conventional just war thinkers, we argue that war is not a binary category, but rather a space along a continuum marked by war and peace at its extremes. Consequently, in this chapter, we argue that attempts by contemporary just war thinkers to draw a clear distinction between the moral worlds of war and peace hinge on a false premise. As the broader literature on international relations reveals, there is not a clear cut-off point between peaceful relations and full out war. In peacetime, there is little room for coercion and violence. But between peace and the coercive violence of war lies a spectrum of activities, which can be helpfully captured by the category of vim. With this in mind, this chapter proceeds in three steps. First, we demonstrate that there is a conceptual space for jus ad vim both within the classical just war tradition and within contemporary international relations literature. Second, we argue that the category of vim is not only intellectually plausible, but also morally necessary. Without such a category, either everything becomes war, or – more frighteningly – everything becomes peace. Finally, we conclude by considering how the moral principles of jus ad vim might differ from their jus ad bellum counterparts.

Jus ad vim: Measures short of war and foreign policy Jus ad vim is the term Michael Walzer coined in the fourth edition of his seminal Just and Unjust Wars, in the context of explaining the ethical difference between the containment regime in Iraq from 1991 to 2003 and the war that began in March 2003 (Walzer 2006). He suggested that it is ‘common sense’ that strategies that merely threaten force – like embargoes – and even 37

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those that require its use, such as defending no-fly zones, are nonetheless ‘very different from actual warfare’ (Walzer 2006: xiv). In Walzer’s view, the customary moral arguments against preventive war do not apply ‘to the preventive use of force-shortof-war – since short-of-war means without war’s unpredictable and often catastrophic consequences’ (Walzer 2006: xiv). A ‘strongly coercive containment’ regime would have ‘required forceful actions every day’ – but would have made the 2003 Iraq War ‘politically impossible for the American government to fight’ (Walzer 2003). This view clearly sets actions short of war apart from war, in moral and practical terms. As Walzer put it thirty years earlier (although without the ad vim moniker), ‘it is obvious . . . that measures short of war are preferable to war itself whenever they hold out the hope of similar or nearly similar effectiveness’ (Walzer 2006: 85). The use of drones to prosecute the War on Terror reinvigorated the discussion of how (and whether) just war thinkers should address foreign policy uses of force that fall short of what we call war. After all, drones have come to be used to precisely target specific individuals and sites for destruction in states with which the United States is not at war. Should such targeted killings be considered acts of war, subject to traditional jus ad bellum considerations, or are they better understood as a form of longdistance police action? The possibility that this use of drones is neither war nor policing inspired Brunstetter and Braun to argue that the use of drones, ‘as a coercive measure short of full-scale war’, required embracing a relatively new ethical category, namely jus ad vim (Brunstetter and Braun 2011: 339). In their view, the War on Terror created ‘in-between’ spaces of moral uncertainty where force is used on a consistent and limited scale, but war is not declared (Brunstetter and Braun 2013: 89). Unsurprisingly, other thinkers in the Walzerian tradition have embraced the concept of jus ad vim as a way to think through the ethics of violent conflict without ‘expanding the definition of war’ (Ford 2013: 64).1 Revisionists, however, assert that a single ethical rule should apply whenever force is used, regardless of the context; if this were true, jus ad vim would be unnecessary (Frowe 2016; Steinhoff 2014). Thinkers who approach just war questions from the legal tradition might also reject jus ad vim, arguing that it is essential to maintain a clear conceptual boundary between war 38

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and peace (Luban 2017). In the section that follows, we demonstrate that both the classical just war tradition and contemporary international relations literature share the jus ad vim insight that war and peace are best understood as existing along a continuum, rather than representing hermetically sealed categories. This suggests that the jus ad vim is worth a closer look.

War in classical just war thinking: A special type of political violence While the idea that war and peace are decidedly separate categories seems very natural to many just war thinkers today, the idea of a bright line between these two spaces is relatively new. Indeed, it is quite possibly linked to Walzer’s legalist approach, as international law insists on clear definitions and categories (Luban 2017). However, a brief survey of classical just war thinkers illustrates that this has not always been the case.2 Historically, these thinkers failed to precisely define war and treated the moral problems of war as parallel to many peacetime dilemmas. This does not reflect poor scholarship or a lack of nuanced thinking. Rather, it shows an intuitive recognition that, whenever force and coercion are involved, we enter a moral universe where the straightforward moral demands of peacetime can no longer be so easily applied. Thus, although the canonical just war thinkers – Augustine, Aquinas and Vitoria – did not meticulously define what they meant by war, a careful reading of their canonical texts nevertheless reveals what they made assumptions about who fought in wars and why they fought them. Classical just war thinkers treated war as a type of political violence involving two distinct political communities. Thus, Augustine makes it clear that war is a communal action, undertaken by ‘the authority and deliberation’ of a leader (Augustine 1994: 222). Aquinas further specifies that war must involve the actual fighting against external parties, a detail which enables him to distinguish strife (fighting between individuals) from sedition (fighting within a community) and war, which he understood to be ‘carried on against external enemies’ (Aquinas 2002: 248). Furthermore, classical just war thinkers saw war as a violent activity sparked by competing claims of justice. As Augustine 39

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(1984: 866) puts it, war is always fought for the sake of peace, a rightly ordered state of affairs.3 Aquinas emphasises that war must ‘involve actual fighting’, unlike sedition which can simply involve preparation for fighting (Aquinas 2002: 248). This serves to distinguish war from diplomatic struggles between communities. Vitoria, writing at the dawn of the modern era, adds the idea that war is political violence on a broader scale than other sorts of punishments states might inflict on each other. He therefore argues, as it would be unjust to inflict ‘cruel punishments such as death, exile, or confiscation of goods for all crimes indiscriminately’ on the domestic plane, it would be wrong to ‘persecute those responsible for trivial offenses by waging war upon them’ (Vitoria 1991: 304). In this explanation, he leaves the door open for a wide variety of actions short of war, suggesting that he understood war to be a specific point on a continuum of political violence. None of these three thinkers, however, tells us anything specific about the scale of the violence involved in war, although Vitoria may be seen as tantalisingly hinting in that direction. For our purposes, the most interesting thing about the way canonical just war thinkers handled the problem of war is that, morally speaking, they did not distinguish war from other sorts of violence. Instead, they justified all legitimate uses of force – whether domestic law enforcement or international conflict – in the same manner. For example, Augustine legitimises military force at the same time as he makes the case for the use of corporal punishment and the death penalty, arguing that so long as the individuals using force act not ‘as avengers of their own injuries, but defenders of public well-being’ (Augustine 1994: 222), they should be seen not as murderers, but as ‘ministers of the law’. Aquinas more directly asserts that princes’ duty to protect the commonwealth meant not only that they could use force against ‘those who trouble it from within’, but also ‘against enemies from without’ (Aquinas 2002: 240). Vitoria similarly links the logics of the use of force internationally to the just use of force at home: if it is lawful to use force ‘against malefactors and seditious subjects within the commonwealth; therefore it must be lawful to use the sword and take up arms against foreign enemies too’ (Vitoria 1991: 297). Elsewhere, he claims that just as individuals have a right to ‘defensive war’, to defend their persons and property, commonwealths must have the right to do the same (Vitoria 1991: 299). In treating the moral 40

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problems of war as parallel to the moral problems of the use of force more generally, these just war thinkers have clearly left open a space that we could call vim. Interestingly, although these classical just war thinkers do legitimise both the domestic and international uses of force using the same moral reasoning, they differ from contemporary revisionists in that they see the ethics governing the use of force as belonging not to ideal ethics, or even everyday ethics, but to a decidedly unideal – but necessary – realm. Consequently, for centuries returning soldiers were expected to do penance even though killing in war was not a sin (Meagher 2014: 85, 105).

Defining peace and war If the classical just war tradition has made little effort to find a clear dividing line between war and peace, contemporary international relations scholars have searched intensively for one. However, despite devoting considerable intellectual energy to the project, a review of the international relations literature on war reveals that the discipline does not maintain strict definitions of war and peace. In fact, the concept of peace itself remains very loosely defined across the literature. While for most scholars of international relations, peace refers to the absence of war and violence (Galtung 1969), peace can be thought of as a political process s(for example, peace processes) or as an outcome (Richmond 2008). There may also be varying forms of peace, such as the Kantian distinction between temporary peace and perpetual peace (Kant 1983). Furthermore, the existence of peace, if we think about it as the absence of war and violence, does not mean that states will have agreed upon interests. Rather, even in times of peace, states still bargain with each other to try to achieve their political goals. Peace, therefore, does not necessarily imply a ‘harmony of interests’ (see Carr 1964). As a result, many international relations scholars stress the tenuousness and fragility of peace, recognising that political disagreements between states can erupt into war and that the decision to engage in warfare can be a rational choice (see Fearon 1995). Thus, the traditional international security scholarship has primarily focused on explaining the causes of war, rather than the conditions for peace (Richmond 2008). This then begs the question: What constitutes war? 41

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Most traditional definitions of war in international security stem from Clausewitz’s famous dictum that war is ‘an act of force to compel our opponent to fulfil our will’ (Clausewitz 1976: 75). Clausewitz further clarifies that force, in this context, refers to physical force (that is, the use of violence). But, in this conceptualisation, violence must have a purpose; it must serve some larger goal. Indeed, Clausewitz explains that violent force is ‘the means of war’, but the objective of war is to ‘impose our will on the enemy’ (Clausewitz 1976: 75). In other words, war is instrumental and coercive in that it serves a political purpose. Contemporary international relations scholars further emphasise the idea that war can serve a variety of goals, such as weakening an adversary’s military and economy or directly influencing an adversary’s actions. To this end, Gartzke defines war as the ‘expression of political interests through physical violence’ that can be used to either ‘punish/ compel’ or to ‘conquer’. Thus, war is both violent and coercive (Gartzke 2013: 54). This focus on the intentionality of war is central to Clausewitz’s definition. Indeed, modern scholars have further clarified the distinction between coercive acts and acts of ‘brute force’, stressing the political nature of coercion (Schelling 2008: 3). As Schelling puts it, the key ‘difference between coercion and brute force is as often in the intent as in the instrument’ (Schelling 2008: 5). Coercive acts are those that threaten to inflict damage in order to obtain political objectives. Thus, one could argue that war is the purposeful use of violence to achieve political aims. Yet, such a definition then creates ambiguity in distinguishing between war and the use of force short of war. Statesmen, for example, can use coercive threats of violence to try to achieve more favourable outcomes. Art details the ‘fungibility of force’, explaining how force can achieve a variety of political ends, including when it is used outside traditional warfare (Art 1996). He further argues that coercive threats of violence can serve a variety of functions, including those that might technically be categorised as ‘peaceful’ (Art 1980). Such realities broaden the use of warfare as a coercive tool, suggesting the line between war and peace is not as black and white as Walzerian just war thinking presumes. In an attempt to further identify what is war and what is not, scholars of international security have pointed out other factors that may help to clarify this distinction. In this regard, many have 42

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stressed the intensity or sustainability of violence. Clausewitz, for example, cautions that ‘war is never an isolated act’, nor does it ‘consist of a single short blow’ (Clausewitz 1976: 78–9). Similarly, Levy and Thompson define war as ‘sustained coordinated violence between political organizations’ (Levy and Thompson 2010: 5). In their conceptualisation, war’s violent nature and the long-term use of violence separates it from other forms of conflict. Yet, this then leads to questions of what constitutes ‘sustained’ violence, particularly as wars themselves often go through lulls in which few combatants are killed. To remedy this problem, Levy specifically defines war in terms of the number of casualties and the number of participating combatants (Levy 1983). Similarly, the Correlates of War data set, used widely in studies across international security, lays out three criteria for an event to be considered a war: it must have sustained violence or combat, it must include organised forces and it must have 1,000 battle deaths in one year (Sarkees and Wayman 2010). These narrow numerically oriented definitions help scholars to quantify and identify the causes of war and the events surrounding the escalation and conduct of warfare. But at the same time, these attempts to create clear-cut definitions of war have resulted in the imposition of arbitrary thresholds. This tension within the international relations literature is rather parallel to the tension within contemporary Walzerian just war thinking, which on the one hand relies on the presumption that war and peace are distinguishable categories – making the analysis of jus ad bellum a logical possibility – while at the same time sensing that this distinction is artificial enough to warrant the development of a jus ad vim. Indeed, the literature on international security further recognises that clear distinctions between war and other uses of violent coercion are, to a certain extent, artificial. In doing so, scholars also acknowledge that the use of both violence and coercion can occur outside war. While these acts may not reach the technical statistical threshold set forth by the Correlates of War data set, there is also a clear and widespread understanding that such behaviours also do not constitute peace. States, for example, are often engaged in international crises, whereby they employ coercive threats – both violent and non-violent – to try to achieve political gains (see Brecher and Wolkenfeld 1997; Lebow 1981). International crises, such as the classic example of the Cuban 43

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Missile Crisis, often involve a ‘dangerously high probability of war’ (Snyder and Diesing 1977: 7). While such crises would not meet the classic Clausewitzian definition of ‘war’, such events can quickly escalate to large-scale violence, erode relations between states and threaten international peace (Leng 1993: 8). To further illustrate this point, consider the prevalent focus on militarised interstate disputes (MIDs) across scholars of international security. MIDs, themselves, are defined as the ‘threat, display, or use of military force short of war’ by one state against another (Jones et al. 1996: 163). While MIDs might not reach the threshold of violence necessary to be considered ‘war’, few would argue that use of such forms of violence constitute peace. Finally, even when violence is not employed or threatened, states can still use nonviolent coercive tools against each other, such as economic sanctions. These actions can be further destabilising to the international community; yet, just war thinking’s narrow analytical focus on war would leave us with little recourse to consider the ethical implications of such acts.

Violence and coercion as a continuum Unlike contemporary just war thinking, therefore, the broader international relations literature recognises that there are variations on the use of international violence and coercion that, while they may not constitute war, can still be destabilising to international peace. And so, it turns out that the classical just war tradition and the contemporary international security literature arrive at parallel discussions about the nature of war. Indeed, rather than seeing war as a clearly distinguishable category, scholars of international security imagine war as a particular location on a broader continuum ranging from non-violent, non-coercive peace to violent, coercive war. Visually, we can think about peace and war as occupying two ends of a spectrum. On the left hand side is peace, where states do not engage in violent coercive acts with each other. On right hand side is war, where states participate in large-scale sustained violent coercion against each other. There is no bright line dividing the two. Instead, we might imagine that tendrils of the fog of war reach out along the continuum. At some points the fog is 44

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so thick – the coercion and violence so intense – that we know it must be war. But as we move back along the continuum towards peace, the fog lifts gradually. We pass through an ambiguous landscape, home to a whole host of actions, which, while they might not be peace, are also not fully war. As the fog lifts further, the relative coerciveness and violence of the actions on the spectrum decline. And when it is completely clear – when coercion and violence are no longer systematically present – the situation can be described as peace. Actions on the left hand of the spectrum are furthest away from the fog of war and closest to definitions of peace. This part of the spectrum incorporates different forms of peace, such as Kant’s envisioned perpetual peace, where states abandon their standing armies and do not interfere with each other’s domestic affairs. It can also include the constructivist view of peace, in which states recognise their ability to work together to achieve common aims and construct identities based on these relationships that make the use of force unthinkable – or at least much less likely (see Wendt 1999). Realist forms of peace would also belong on this end of the spectrum, such as peaceful relations emerging after war or due to balances of power in which some states may not need to employ violent coercion to achieve their aims (see Waltz 2010). As we move further towards the right, however, we also see that this end of the spectrum can include acts in which states use nonviolent and non-coercive actions to further their political interests. Along this part of the continuum would lie what Kennan called ‘amicable measures short of war’ (Kennan 1946). These are acts that can occur during what many would technically call peacetime and might include actions that do not use either violence or the coercive threat of violence, such as negotiations or non-coercive diplomacy. Thus, this left end of the spectrum includes peace and, at the same time, it also recognises that peace is not always the absence of politics. While just war thinkers have historically glossed over the sorts of actions that fall into this end of the spectrum – lumping them together as things that must be done before the last resort criterion can be met – recent scholarship has started to explore the ethics of diplomatic criticism (Pattison 2015). Moving towards the centre of the spectrum, we see that states also engage in acts that are non-violent but still coercive. Kennan termed such coercive tools ‘non-amicable measures short of war’ 45

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(Kennan 1946). This can include economic and diplomatic sanctions, non-kinetic cyberattacks, information warfare, coercive diplomacy, blockades and threats to use force. Much of what we call peace in ordinary language might actually sit here. If we consider that ‘peaceful’ relations between states often involve coercive threats – such as the use of economic sanctions or deterrent threats of force, the need to think about peace and war as a continuum becomes even clearer. Indeed, these behaviours are often viewed as not technically violating peaceful relations because it is assumed that such threats will not be acted upon. Yet, we contend such actions do not fully constitute peace as their use increases the probability that violent conflict can erupt. In fact, such actions often spark a series of events that can quickly escalate into violent conflict and war. Thus, we find ourselves slowly moving closer and closer towards the fog of war. Visually, one could think of this part of the spectrum as having tendrils of fog that, if we were to follow them, would lead us into a thicker impenetrable mist, eventually finding ourselves inadvertently at war. Furthermore, the coercive nature of such acts along this part of the spectrum, while sometimes obscured, raises significant moral quandaries. This has led some scholars to attempt to apply the just war tradition to such cases. Numerous scholars have considered the implications of using just war principles to evaluate the morality of sanctions (for example Pentland 2002; Gordon 1999; Pierce 1996). Coercive diplomacy has also recently been the subject of just war discussion (Lango 2006; Lang 1996). Non-kinetic warfare tactics, ranging from cyberattacks to information warfare, are also the subject of significant debate within just war circles. Finally, as we move further and further to the right, we find ourselves immersed in this fog, which becomes thicker the closer we get to the end of the spectrum. This fog can consist of a whole host of actions that, while they might not fully constitute war, certainly employ violence and coercion. This can include strategic air bombing, terrorism and some forms of covert action, like foreign imposed regime change or leadership decapitation (that is, assassination). Strategic air bombing, for example, uses air power in an attempt to convince the adversary to capitulate on a particular issue or to change their behaviour (Pape 1996). As a tactic, it can be used as either part of the violence of war or as a one-shot coercive act, such as with the Israeli bombing of 46

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the Iraqi nuclear reactor during Operation Opera in 1981. Similarly, terrorism is also a violent tactic used by groups to achieve political aims, but is rarely conceptualised as a full-on war in traditional terms (see Abrahms 2006). Likewise, many forms of covert action involve the use of violence for political ends, but are not themselves meant to induce long-term sustained violence. Foreign imposed regime change, for example, often involves the use of violence to remove a state’s leader in the hopes of altering that state’s behaviour. The assassination of leaders, or more technically leadership decapitation, is by definition violent and coercive. Furthermore, while each of these acts can occur during war, they can also be implemented outside the conduct of a specific war. On their own, they certainly constitute violent and coercive acts short of war and may even inadvertently escalate to sustained long-term violence. Thus, the fog of war can become so thick at this end of the spectrum that it can be difficult to discern when one is merely participating in acts short of war or when one has found themselves in the midst of an actual war.

Do just war thinkers need a jus ad vim? The recognition that, in reality, there is a broad continuum of political violence between war and peace offers thinkers interested in the ethics of force three distinct possibilities. First, it is possible to suggest that any and all uses of force for political ends constitute war and, hence, just war thinking can be applied to all of them. Second, it could be claimed that since force can be used in peace as well as war – and on the domestic level as well as internationally – any and all uses of force for political ends should be analysed using an ethics appropriate to peacetime, such as the principles of policing. Third, it can be argued that this intervening space between peace and war needs to be named for what it is and it deserves ethical attention of its own. To better understand why this third position is the one we adopt, let us take a moment to consider the other two possibilities. Both essentially deny the moral distinctiveness of war from violence and coercion used for other purposes. In the first case, the dichotomy between war and peace is so blurred that any use of force becomes war. As Enemark has pointed out in the context 47

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of drone-based violence, this could lead to the acceptance of vis perpetua, that is, to the continual use of force (Enemark 2014: 370). In this conception, violence is not something that can be fully removed from political life. This essentially makes peace a null category, and in so doing, undermines the possibility of any sort of ethical restraint on the use of force (Enemark 2014: 379). Thus, instead of thinking about how the use of force in the present might help ensure the conditions for a future peace, the inhabitants of a world characterised by vis perpetua worry only about the effective management of violence (Enemark 2014: 372). In the second case, which is invoked by many revisionist just war thinkers, war and peace are also not seen as marking separate moral categories. As Frowe puts it, ‘rejecting the significance of war . . . circumvents [the] difficulty . . . [of] how to determine whether something counts as war’ (Frowe 2016: 122). But in this case, rather than envisioning a kind of vis perpetua, revisionists argue that a single set of moral principles should apply to all uses of force, regardless of their scale, whether domestic or international. Given the immense value of human life, it may at first seem tempting to accept the revisionist position and to argue that a single set of moral principles should apply any time violence is used, from personal self-defence to domestic policing to international acts of force. The problem, from our perspective, however, is that this fails to recognise the practical differences between these cases in terms of what a responsible actor can be expected to know and also what risks they can be fairly expected to accept. For example, in the domestic case, the nature of the social contract is such that the police owe responsibilities of care not only to the victims of crimes, but also to suspects and even criminals. For this reason, we can rightfully demand that individual police officers take more risks with their own lives to attempt to deter or arrest criminals without killing them. Furthermore, the general condition of domestic order means that we expect the police to presume that the individuals they see – and often, even those they see behaving strangely – are innocent of wrongdoing. In a sense, we expect police to use force only as a last resort in each individual action. By contrast, in war, there is no generalised social contract between soldiers on one side and those on the other, nor even between soldiers and what are sometimes called ‘enemy’ civilians. Last resort in the context of war thus applies to the decision to 48

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engage in war in the first place, but not to each individual act therein. Certainly, the innocence of civilians (and the concomitant duty to use only discriminate force) means that sometimes soldiers should accept risks in order to avoid harming civilians. But the degree of risk is not, in most cases, as high as it would be in the domestic case.4 Thus, although proportionality applies in both cases, the bar at which one would say a particular act is no longer proportional is higher in the case of war. For example, most of us would agree, in the domestic context, that it would likely be disproportionate to fire at a crowd of criminals, knowing that the shots could ricochet and kill a handful of innocent bystanders. But many readers would not find the same level of force disproportionate if instead of criminals, the targets were ‘enemy combatants’. The meaningful moral difference is the degree of care that the innocent bystanders have the right to demand. This gets to the heart of why this second approach to the peace/war divide is just as problematic as the first. If we accept that all uses of force should be judged according to the same moral calculator, then we must choose between the domestic and the international levels of care. Either all uses of force must be domestic policing, or all uses of force must be war. Revisionists hope that, as a society, we would choose the former. Strawser, for example, acknowledges that ‘doing so will increase the difficulties confronted on the battlefield, but these costs will need to be paid if one is to take seriously the rights of an enemy population’ (Strawser 2011: 543). Yet, we fear – and realists would agree – that it is more likely that accepting this approach will transform all uses of force into war. The problem is that applying the domestic model of policing to war – especially given the intrinsic epistemological difficulties unique to that context – would make it nearly impossible for soldiers to fight. Unless we adopt a pacifist stance, this move is simply paralysing. Thus, the concept of vim serves a useful function by giving a name to the space between war and peace. It can provide a space for evaluating the ethics of activities ranging from sanctions to targeted air strikes to cyber-acts to foreign imposed regime change. What links these actions, from the point of view of international relations theory, is that they are all coercive or violent (or both), but fall short of any reasonable definition of war, whether because of their means, scope or ends. While just war thinkers 49

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have certainly been addressing these pressing moral issues, failing to mind the gap between what is clearly war and clearly peace ignores what we know about the continuum of force.

The moral content of jus ad vim But does recognising that there is a space we can call vim mean that we need a new or revised set of principles to address it? We argue that very little needs to be changed. Most of the standard just war principles invoked by contemporary just war thinkers are still of practical use. The jus ad bellum principles of legitimate authority, just cause, right intent, proportionality and likelihood of success are all just as relevant for thinking about non-kinetic uses of force as they are for uses of force short of war. However, the principle of last resort functions differently in the world of jus ad vim from jus ad bellum. When operating in the grey zone between war and perfect peace, ethical policymakers should, of course, try to avoid slipping into fully fledged war. And so they must at all times have in the back of their minds the injunction that war is only permissible as a last resort. But the last resort principle, if we accept the existence of a jus ad vim, cannot be taken any more broadly than that. In other words, we must accept that last resort applies only to war and not to the use of force more generally. As a consequence, it could be the case that the use of force short of war may not be the last resort at all – but may actually be the most effective and most ethical option. After all, if a small amount of targeted force could avert a bloody war, while the existing non-kinetic options would almost certainly fail, then surely the ethically correct choice must be to use force. Similarly, if the available non-kinetic options – sanctions, for example – would involve more harm to innocents than the targeted use of force, what ethical argument could justify insisting that such non-kinetic options be given a chance? Because force is integral to the coercive options a state can pursue short of war, Walzer has ‘always resisted the argument that force is a last resort’ (Walzer 2004: 160). While this sounds logically straightforward, many contemporary just war thinkers define last resort in a way that may make our proposal seem revolutionary to some readers. Unsurprisingly, this is at least in part because of a tendency to equate war with any use 50

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of force. For example, the National Council of Catholic Bishops’ 1993 pastoral letter defines last resort as the idea that ‘force may be used only after all peaceful alternatives have been tried and exhausted’ (see Patterson 2009: 23). Similarly, Childress accepted that ‘last resort does not mean that all possible measures have to be attempted . . . if there is no reasonable expectation that they will be successful’ (Childress 1978: 436). But in explaining that formal declarations of war are the last measures ‘short of force itself’, it becomes clear that for Childress last resort applies broadly to the use of force, not just to war (Childress 1978: 436). Fixdal and Smith likewise argue that last resort means ‘the use of force should be employed only when alternative means are not available’ (Fixdal and Smith 1998: 302). This definition itself implies that all uses of force are somehow war. Fixdal and Smith seem to admit this when they assert that ‘The Just War Tradition is concerned with setting moral limits on war and warfare because the use of force have harmful consequences’ (Fixdal and Smith 1998: 302). In a similar vein, Lango assumes that last resort ‘is pertinent not only to large-scale wars but also to a gamut of limited wars – including what are often called acts of war (i.e., a demonstration shot to signal resolve)’ (Lango 2006: 13). Thus, one must prove that there are no reasonable alternative measures ‘before using armed force’ (Lango 2006: 14). In all of these cases, the lack of a clear conceptualisation of what constitutes war leads to a blurring of any distinction between war and force, which ultimately leads these thinkers to treat last resort as universally applicable. Beyond eliminating the last resort principle, however, the recognition that there is a continuum of force between war and peace does not require us to generate a new set of ethical principles. The remaining ad bellum principles of legitimate authority, just cause, right intent, proportionality and likelihood of success are more than flexible enough to address the challenges of this moral grey area. Although uses of force short of war may not be as destabilising as war itself, any use of force poses a potential threat to the stability of the system and hence must be approved by a legitimate authority, usually the state.5 While this is ethically imperfect, in that some non-state actors may have very valid justice claims to pursue, legitimate authority as a principle seeks to restrain violence in the international system by a priori limiting who may permissibly use it. Similarly, nearly every use of force has the potential to take 51

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lives, warranting a very careful consideration of whether one has a just cause, whether self-defence or righting a wrong. And we must always be careful that our real intent for using force is to seek a just end, rather than allowing other factors to colour our judgment. Furthermore, additional or uniquely ad vim principles are not necessary. At first blush, adding an escalatory principle, to the effect that all ad vim actions should avoid escalation, might seem appealing. After all, a potential reason why some readers might be interested in the concept of jus ad vim is the hope that recognising such a category could put up a further barrier between peace and war, making the latter harder to legitimise. However, because the coercive threat of escalation is itself a tactic that falls between war and peace, it cannot be used as a distinct moral principle. Furthermore, just as the jus in bello principles of distinction and proportionality should limit unnecessary escalation in war, the same principles could be applied when considering actions short of war. Increasing the amount of coercion or violence used is not ipso facto immoral; it is only so when the increased pressure does not effectively serve a moral end. In sum, we find that insights from the field of international relations make it clear that war, as it is traditionally understood, is actually a location on a broader continuum of political violence. Attempting to draw a bright line between war and peace is therefore futile. However, the broad space between non-violent, noncoercive peace and violent, coercive war can be described in terms of vim. While we see the logical and moral necessity for recognising this space on the continuum, we do not believe that uses of force short of war necessarily require a unique set of moral principles. Instead, we argue that the existing just war principles are sufficient, with one modification. Last resort – itself a rather new addition to the tradition – cannot apply to the use of force short of war. Instead, it is meant to serve as a psychological dividing line – the moment where we cross from vim to war.

Notes 1. Like drone strikes, the use of cyber-tactics also inspires just war thinkers to consider the value of a jus ad vim. See Lucas (2017) and Jenkins (2013).

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Violence, Coercion and Jus ad vim 2. We focus on the Western classical tradition here, as both Walzerian and revisionist just war thinkers trace their roots back to this earlier just war tradition. Outside the West, the distinction between war and peace is perhaps most clearly articulated in the classical Islamic tradition. 3. Of course, the problem is that different communities differ as to what constitutes a just order! 4. One could argue that it ought to be equally high in the case of humanitarian intervention, as the presumptive just cause itself involves civilian protection. 5. Because international institutions and organisations (such as the United Nations and the North Atlantic Treaty Organization (NATO)) derive their legitimacy and practical capabilities from state actors, limiting legitimate authority to states does not preclude a voice for such institutions.

References Abrahms, Max (2006), ‘Why Terrorism Does Not Work’, International Security, 31: 2, 42–78. Aquinas, Thomas (2002), Aquinas: Political Writings, R. W. Dyson (ed.), Cambridge: Cambridge University Press. Art, Robert (1980), ‘To What Ends Military Power?’, International Security, 4: 4, 3–35. Art, Robert (1996), ‘American Foreign Policy and the Fungibility of Force’, Security Studies, 5: 4, 7–42. Augustine (1984), City of God, C. R. Evans (ed.), London: Penguin Books. Augustine (1994), ‘Against Faustus the Manichaean XXII. 73–79’, in Michael Tkacz and Douglas Kries (eds), Political Writings, Indianapolis: Hackett Publishing Company. Brecher, Michael and Jonathan Wolkenfeld (1997), A Study of Crisis, Ann Arbor: University of Michigan Press. Brunstetter, Daniel and Megan Braun (2011), ‘The Implications of Drones on the Just War Tradition’, Ethics & International Affairs, 25: 3, 337–58. Brunstetter, Daniel and Megan Braun (2013), ‘From Jus ad bellum to Jus ad vim: Recalibrating Our Understanding of the Moral Use of Force’, Ethics & International Affairs, 27: 1, 87–106. Cady, Duane (2010), From Warism to Pacifism: A Moral Continuum, Philadelphia: Temple University Press. Carr, Edward Hallet (1964), The Twenty Years’ Crisis: 1919–1939, New York: Perennial.

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Force Short of War in Modern Conflict Childress, James (1978), ‘Just-War Theories: The Bases, Interrelations, Priorities, and Functions of Their Criteria’, Theological Studies, 39: 3, 427–45. Clausewitz, Carl von [1832] (1976), On War, Michael Howard and Peter Paret (eds and trans.), Princeton: Princeton University Press. Enemark, Christian (2014), ‘Drones, Risk, and Perpetual Force’, Ethics & International Affairs, 28: 3, 365–81. Fearon, James (1995), ‘Rationalist Explanations for War’, International Organization, 49: 3, 379–414. Fiala, Andrew Gordon (2008), The Just War Myth: The Moral Illusions of War, New York: Rowman and Littlefield. Fixdal, Mona and Dan Smith (1998), ‘Humanitarian Intervention and Just War’, Mershon International Studies Review, 42: 2, 283–312. Ford, Shannon Brandt (2013), ‘Jus ad vim and the Just Use of Lethal Force-Short-of-War’, in Fritz Allhoff, Nicholas Evans and Adam Henschke (eds), Routledge: Handbook of Ethics and War: Just War Theory in the 21st Century, New York: Routledge, pp. 63–75. Frowe, Helen (2016), ‘On the Redundancy of the Jus ad vim: A Response to Daniel Brunstetter and Megan Braun’, Ethics & International Affairs, 30: 1, 117–29. Galtung, Johan (1969), ‘Violence, Peace, and Peace Research’, Journal of Peace Research, 6: 3, 167–91. Gartzke, Erik (2013), ‘The Myth of Cyberwar: Bringing War in Cyberspace Back Down to Earth’, International Security, 38: 2, 41–73. Gordon, Joy (1999), ‘Economic Sanctions, Just War Doctrine, and the “Fearful Spectacle of the Civilian Dead”’, CrossCurrents, 49: 2, 387–400. Hammond, John (2005), ‘The Bush Doctrine, Preventive War, and International Law’, The Philosophical Forum, 36: 1, 97–111. Jenkins, Ryan (2013), ‘Is Tuxnet Physical? Does it Matter?’, Journal of Military Ethics, 12: 1, 68–9. Jones, Daniel, Stuart Bremer and J. David Singer (1996), ‘Militarized Interstate Disputes, 1816–1992: Rationale, Coding Rules, and Empirical Patterns’, Conflict Management and Peace Science, 15: 2, 163–213. Kant, Immanuel [1795] (1983), Perpetual Peace and Other Essays, Ted Humphrey (trans.), Indianapolis: Hackett Publishing Company. Kennan, George F. (1946), ‘Measures Short of War (Diplomatic)’, Lecture at the Naval War College, 16 September 1946. Lang, Anthony Jr. (1996), ‘Just War Principles and Economic Sanctions’, Ethics & International Affairs, 10, 99–113. Lango, John (2006), ‘The Just War Principle of Last Resort’, Asterikos, 1: 2, 7–24.

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Violence, Coercion and Jus ad vim Lebow, Richard Ned (1981), Between Peace and War, Baltimore: The Johns Hopkins University Press. Leng, Russell (1993), Interstate Crisis Behavior, 1816–1980: Realism versus Reciprocity, Cambridge: Cambridge University Press. Levy, Jack (1983), War in the Modern Great Power System, Lexington: University Press of Kentucky. Levy, Jack and William Thompson (2010), Causes of War, Oxford: Wiley-Blackwell. Luban, David (2017), ‘Just War Theory and the Laws of War as Nonidentical Twins’, Ethics & International Affairs, 31: 4, 433–40. Lucas, George (2017), ‘State-Sponsored Hacktivism and the Rise of “Soft” War’, in Michael Gross and Tamar Meisels (eds), Soft War: The Ethics of Unarmed Conflict, Cambridge: Cambridge University Press, pp. 77–88. McPherson, Lionel (2004), ‘Innocence and Responsibility in War’, Canadian Journal of Philosophy, 34: 4, 485–506. Meagher, Robert Emmet (2014), Killing from the Inside Out: Moral Injury and Just War, Eugene: Cascade Books. Morgenthau, Hans (1950), ‘The Mainsprings of American Foreign Policy: The National Interest vs. Moral Abstractions’, The American Political Science Review, 44: 4, 833–54. Pape, Robert (1996), Bombing to Win: Air Power and Coercion in War, Ithaca: Cornell University Press. Patterson, Eric (2009), Just War Thinking: Morality and Pragmatism in the Struggle Against Contemporary Threats, Lanham: Lexington Books. Pattison, James (2015), ‘The Ethics of Diplomatic Criticism: The Responsibility to Protect, Just War Theory and Presumptive Last Resort’, European Journal of International Relations, 21: 4, 935–57. Pentland, Ray (2002), ‘Just War-Just Sanctions’, Political Theology, 3: 2, 178–95. Pierce, Albert (1996), ‘Just War Principles and Economic Sanctions’, Ethics & International Affairs, 10: 1, 99–113. Richmond, Oliver (2008), Peace in International Relations, London: Routledge. Sarkees, Meredith Reid and Frank Wayman (2010), Resort to War: 1816–2007, Washington, DC: CQ Press. Schelling, Thomas [1966] (2008), Arms and Influence, New Haven: Yale University Press. Snyder, Glenn and Paul Diesing (1977), Conflict among Nations: Bargaining, Decision Making, and System Structure in International Crises, Princeton: Princeton University Press. Steinhoff, Uwe (2014), ‘Just Cause and “Right Intention”’, Journal of Military Ethics, 13: 1, 32–48.

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Force Short of War in Modern Conflict Strawser, Bradley Jay (2011), ‘Walking the Tightrope of Just War’, Analysis, 71: 3, 533–44. Vitoria, Francisco de (1991), Vitoria: Political Writings, Anthony Pagden and Jeremy Lawrence (eds), Cambridge: Cambridge University Press. Walzer, Michael [1977] (2006), Just and Unjust Wars: A Moral Argument with Historical Illustrations, New York, Basic Books, 4th edn. Waltz, Kenneth [1979] (2010), Theory of International Politics, Long Grove: Waveland Press Inc. Walzer, Michael (2002), ‘The Triumph of Just War Theory (and the Dangers of Success)’, Social Research, 69: 4, 925–44. Walzer, Michael (2003), ‘The United States in the World – Just Wars and Just Societies: An Interview with Michael Walzer’, Imprints: A Journal of Analytical Socialism, 7: 1, 1–8. Walzer, Michael (2004), Arguing About War, New Haven: Yale University Press. Wendt, Alexander (1999), Social Theory of International Politics, Cambridge: Cambridge University Press.

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4

The Responsibility to Protect and Uses of Force Short of War

Eamon Aloyo1

Introduction When the use of force is discussed in the context of the responsibility to protect (R2P), many think of a type war known as armed humanitarian intervention (AHI). AHI is when actors war across state borders at least in large part for humanitarian goals and specifically in the context of R2P, to prevent or end genocide, crimes against humanity, war crimes, or ethnic cleansing, without the consent of the government of the target state. For instance, the North Atlantic Treaty Organization (NATO) led intervention of 2011 in Libya when Gaddafi threatened to massacre his own citizens was an AHI. This is undoubtedly an important aspect of R2P and one deserving of the rich debate that it receives (Aloyo 2016; Badescu 2012; Pattison 2010; Scheid 2014; Valentino 2011; Wellman 2012). In this chapter, however, I discuss another aspect of R2P that is at least as important as AHI, namely, uses of force short of war in the context of R2P. States often use many types of force short of war such as domestic law enforcement, deploying peacekeepers, anti-terrorist operations, targeted killings and acts that could escalate into war but fall short of the widely accepted definition of war, requiring at least 1,000 battle deaths in one year among groups who at least have political aims. Such uses of force can support the aims of R2P of protecting civilians from atrocities (Aloyo 2013; Altman and Wellman 2008; Hultman et al. 2013; Fortna 2004). Common uses of force short of war that 57

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are often used in support of the rule of law that is a foundation for democracy and good governance more generally (even though states sometimes abuse their powers) include peacekeeping, covert actions and targeted killings or assassinations (such as against individuals in groups like Islamic State in Syria [ISIS] or Boko Haram). Some but not all uses of force short of war would legally require United Nations (UN) Security Council approval. Uses of force short of war are vital for the implementation of R2P and far more common than AHIs. In this chapter, I argue that R2P permits and requires a variety of uses of force short of war both in times of peace and as alternatives to war, at least when the uses of force short of war are as likely to achieve a just cause as war and that the relevant harms will be less than or equal to war, holding all else constant. R2P is a norm that aims to protect innocent people from mass atrocities. The concept was introduced by the authors of the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS; Evans et al. 2001). An important impetus for ICISS was the 1999 AHI in Kosovo which did not have UN Security Council approval, but many, such as the authors of the Independent International Commission on Kosovo, nonetheless believed it was justified (Goldstone and Tham 2001: 4, 186). The conundrum of a potentially moral intervention being illegal according to the UN Charter contributed to Kofi Annan wanting to rethink how to balance human rights and state sovereignty and the Canadian government helped fund the ICISS report (Bellamy 2015: 3–4). In the ICISS report, the authors took up this challenge to argue that states and the international community had the responsibility to prevent, respond to and rebuild after mass killings and ethnic cleansing (Evans et al. 2001). State sovereignty was conditional on protecting populations from the worst and most widespread violent wrongs. State leaders agreed to a modified – and much shorter – version of the concept in 2005. In just two paragraphs, 138 and 139 of the World Summit Outcome Document (WSOD), state leaders agreed to responsibilities to prevent and react to end genocide, crimes against humanity, war crimes and ethnic cleansing (I call each and any of these ‘mass atrocities’). Unlike the ICISS report, there is no explicit mention of rebuilding in the WSOD. States agreed to avoid specific acts. Genocide, crimes against humanity and war crimes 58

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are codified in international law, such as via the Rome Statute, the foundational document of the International Criminal Court (ICC). Although ethnic cleansing is not itself an independent crime in the Rome Statute, it can likely be prosecuted as one of the core crimes that are codified the Rome Statute (International Criminal Court 1998: paragraphs 7(1)d, 8(2)(a)vii). I use the more specific definition stipulated in the 2005 WSOD of four specific acts that R2P aims to avoid for several reasons. First, this is the more widely accepted definition, as exhibited by the consensus of states approving this document in 2005 (Bellamy 2015: Chapter 1; United Nations General Assembly 2005). Alex Bellamy argues there are at least five points of consensus on R2P (Bellamy 2015: 15–16). First, R2P’s purview is narrow, focusing exclusively on the four acts listed in the 2005 WSOD. Second, R2P applies continuously. States have responsibilities at all times, not just when atrocities are imminent or ongoing. Third, the responsibilities apply to all populations within a state, not just to citizens. This is especially important because some states commit atrocities against stateless people such as the Rohingya in Myanmar, and in some states, such as Qatar, the vast majority of inhabitants are not citizens. Fourth, no international laws are changed because of R2P. Fifth, prevention should be paramount. The second reason I use the WSOD definition of R2P is that it makes specific what sorts of mass killings and abuses are included in the idea of R2P. Although I use the mass atrocity language from the WSOD, I frame the chapter in terms of prevention, reaction and rebuilding as well as the three ‘pillars’ (which I further discuss below) because these are useful for organising and thinking through what types of uses of force short of war are available, morally permissible and sometimes morally required. Since 2005, there have been a number of important reports on R2P that the UN Secretary General has released that have influenced how R2P is conceptualised and implemented. A significant report developed the idea of the three pillars of R2P (Ban 2009). Pillar one holds that states have the primary responsibility to protect their populations from mass atrocities. Pillars two and three are remedial responsibilities and are only activated when states are unwilling or unable to discharge their responsibilities. Pillar two requires the international community to assist states when they lack the capability to discharge their responsibilities. This preserves 59

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a space for state sovereignty. Pillar three permits multiple types of coercive intervention when states are unwilling to discharge their responsibilities. Force is only one aspect of each pillar. All three pillars allow and to some extent rely on various types of uses of force short of war, as I discuss. Discussion of uses of force short of war raises the question of how to define this term. I interpret uses of force to mean violence or the threat of violence, because threats of violence are an important way the use of force can be used. Uses of force short of war in the context of R2P include a wide range of options that aim to avoid mass atrocities. I include actions like shooting, hitting, bombing, as well as threats to do such things, as potentially uses of force short of war. Generally, violent acts are morally prohibited, but they are not always so: under certain conditions, wars can be just, police can use force to arrest a suspect, individual citizens can fight off an unjust attacker. I include threats to use force short of war because it is an important way force can have an impact on society. For instance, inherent in the modern state is a threat of the use of force from the police for some types of violations of the law (and sometimes unwarranted uses of force when no one broke any law, or the force was disproportionate). Politicians and societies have developed a large toolbox of types of violence and I examine many of these throughout the chapter. I differentiate violence from non-violence in ways that are widely accepted. For instance, economic sanctions may harm and even kill people, but sanctions are different from bombs. This is not a moral judgment, instead it is a factual one. Rarely, some types of violence may be morally better than some types of non-violence because they can be more discriminate or proportionate. Proportionality calculations rely on discounting harms to innocent individuals. Liability to defensive harm (liability for short) is an idea discussed by moral and political philosophers who are interested in thinking carefully about when and why the use of force is permissible. Liability entails temporary forfeiture of at least one right: the right not be physically harmed (McMahan 2009: 9 and passim). By forfeiting one’s right against physical attack, an attacker does the victim no wrong. For instance, if someone has made him or herself liable to defensive harm by taking hostage and threatening to kill large numbers of innocent people within one hour, it would not be wrong for the police to shoot the hostage taker if it were proportionate and necessary to end the threat. This 60

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is a circumstance where it is likely better to take violent action than to continue to try to negotiate up to and after the hour has passed. The same can be true, in exceptional situations, of uses of force short of war and war itself. War is generally defined as having at least two groups with political aims who kill at least 1,000 combatants within one year. Some of the categories of uses of force short of war can include peacekeeping, peacemaking, threats, police work, targeted killings (or assassinations), raids and domestic rebellion, among others. The chapter is laid out as follows. I first discuss uses of force short of war as aspects of prevention, reaction and rebuilding. Within this discussion, I note how each of the three pillars relate to these phases of R2P. I then go on to argue that there are only certain moral conditions under which such uses of force are morally permissible. My main conclusion is that uses of force short of war are not only permissible under widely accepted formulations of R2P, but in many instances they are actually required.

Prevention and uses of force short of war Of the three phases of R2P, the authors of the ICISS report wrote that ‘[p]revention is the single most important dimension of the responsibility to protect’ (Evans et al. 2001, XI). I agree with their assessment of prevention for several reasons. The moral importance of avoiding the needless loss of life is high. War and atrocities also have financial and often political costs, and the spill over effects last years and often involve further unjust mass violence. For instance, the Hutu Power genocidaires settled in Eastern Democratic Republic of Congo (DRC) after the Rwandese Patriotic Front (RPF) defeated them and ended the genocide, and subsequently destabilised that region which resulted in a series of horrific wars. There is a wide range of measures under R2P that rely on the use of force short of war associated with preventing atrocities. Foremost among them is the maintenance of a functioning state and a system of rule of law. As Thomas Hobbes emphasises, every state must rely on the use of force (Hobbes 1993). Consider the alternative: if states did not apply the use of force, other armed groups could do so for their private gain and society could quickly devolve into civil war. Just reflect on what occurs in failed states or 61

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regions such as Syria, Eastern DRC, Libya post-Gaddafi or Somalia. Max Weber’s classic definition of a state is useful here. He defines a state as having ‘the monopoly of the legitimate use of physical force within a given territory’ over a group of specific people (Weber 1958: 78). This is arguably both the most important type of the use of force short of war in the implementation of R2P and the most overlooked. States and the rule of law rely on the restrained use of force in order to maintain order, deliver multiple types of justice (such as criminal and social) and execute arrest warrants when individuals (allegedly) break laws. The contemporary state is a relatively modern invention. Steven Pinker cites its rise as one of the central reasons why violence has declined over the long term (Pinker 2011: Chapter 2). State-based societies are far less violent than non-state ones as measured by the percentages of individuals killed (Pinker 2011: Chapter 2). In short, the rule of law backed by the use of force by police constrained by legitimate democratic institutions in states is one of the most important and effective means of maintaining a stable society and thereby avoiding mass atrocities. The authors of the ICISS report recognise that the rule of law, which implies a type of a use of force domestically, is a critical means to preventing atrocities (Evans et al. 2001: 23). Of course, it does not follow that – because states and the rule of law are crucial to preventing atrocities – all states and systems of law prevent mass atrocities. Any cursory examination of history exposes that some legal systems have been twisted and abused in order to commit mass atrocities. As numerous scholars have noted, the state is both a potential guarantor of individuals’ rights and a great threat to them given that the state’s defence apparatus can be used offensively externally and internally. Now, the vast majority of states have some degree of the rule of law and only a tiny minority of states commit atrocities in any given year. Out of nearly 200 countries, the Global Centre for the Responsibility to Protect identifies only about ten countries that are experiencing or at high risk of mass atrocities in any given year, which is about 5 per cent of the total. While every state does not maintain an absolute monopoly of violence or legitimate violence, nearly every state maintains some degree of a functioning armed force domestically. These police, who can use force in everyday situations, are essential for all modern functioning states. 62

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Under pillar one, states have the primary duty for the responsible use of force domestically. But prevention can also fall under pillar two. A state can call on foreign assistance when it lacks capacities to fulfil its duties under R2P. For instance, foreign states may assist in training security forces, training judiciaries, diplomatically supporting democratic states or encouraging demagogic leaders to leave power peacefully. The preventive, consensual deployment of troops is permissible and indeed encouraged under R2P when it would likely contribute to the prevention of mass atrocities. The UN Secretary General has written that when non-state groups are threatening to commit mass atrocities and the state lacks the capacity but not the will to counter such groups, ‘collective international military assistance may be the surest way to support the State in meeting its obligations relating to the responsibility to protect and, in extreme cases, to restore its effective sovereignty’ (Ban 2009: 18). Such consensual deployment of security forces can include troops from various organisations. Examples include the deployment of UN peacekeepers to Macedonia in the early 1990s (Ban 2009: 18–19; Williams 2000). Regional organisations such as the African Union can also deploy troops with the consent of the host states. States can craft bilateral agreements to deploy national armies to another state.

Reacting to End Mass Atrocities and Uses of Force Short of War When prevention fails and mass atrocities are ongoing, states maintain the primary responsibility for ending them. For instance, if a non-state group commits atrocities, a state’s security forces can legitimately target those actors carrying out the atrocities in order to end them, as long as those efforts meet the ethical and legal standards necessary to use force legitimately. Sometimes such uses of force can be short of war. If states are unable to counter non-state actors, the international community has an obligation, under pillar two, to assist states in fulfilling their responsibilities. This can include a diverse array of uses of force short of war such as training security forces, contributing materiel, consensual deployment of troops, police or peacekeepers and general ‘military assistance to help beleaguered states deal with armed non-state actors threatening both the state and its population’ (Ban 2009: 15). For instance, the initial 2014 63

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US led coalition intervention against ISIS in Iraq with the consent of the Iraqi government in order to end – or at least mitigate – ISIS’s atrocities against the Yezidi could be considered a use of force short of war at first. This is because the limited intervention, which Obama originally claimed was aimed at only preventing genocide against Yezidis on Mt Sinjar, may have not met the 1,000 battle death threshold. The intervention grew into a war of course, as the US led coalition broadened its attacks against ISIS in both Iraq and Syria. But if the intervention stopped after just a few days when those Yezidi civilians who were trapped on Mt Sinjar were able to flee to relative safety, the intervention likely would have not qualified as war. Similarly, if the US did not go to war but instead conducted covert actions against ISIS members, this could also fall under an R2P operation (Roff 2015). A central difference of pillars two and three is that under pillar three coercive measures – including military ones – are permissible under certain circumstances (Ban 2009: 25). Pillar three, in other words, concerns situations where states are unwilling (rather than unable) to address mass atrocities. States themselves or non-state actors could be the perpetrators. Such measures could include war but are not limited to such high intensity uses of force. They can take the form of no-fly zones, limited military strikes and the deployment of peacemakers or peacekeepers. For instance, the no-fly zones in Iraq in the 1990s were aimed in large part at protecting minority populations from a repetition of Saddam Hussein’s mass atrocities against the Kurds in the Anfal Campaign. Uses of force short of war under pillar three circumstances can be consistent with international law and the version of R2P that states accepted in the WSOD. In it, states said the approval for the international use of force must go ‘through’ the UN Security Council (United Nations General Assembly 2005: paragraph 139). This is widely accepted to mean that the Security Council must pass a resolution sanctioning the use of force and this is the standard understanding of when the use of force other than in individual or collective self-defence is legal according to the UN Charter. Consistent with my argument here, the UN Charter mentions ‘the use of force’, not war (for example United Nations 1945: section 42). Thus, the UN Security Council can and should sanction uses of force short of war, at least whenever when they are as likely to achieve a just cause as war, holding other factors constant (as I discuss further below). 64

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The aim of R2P is to avoid mass atrocities. However, if that’s not possible, actors should work to mitigate atrocities. One important step in this is through UN peacekeeping. Scholars have found that UN peacekeepers can decrease the number of civilian and combatant deaths during civil war (Hultman et al. 2013, 2014). While not all civilian deaths are mass atrocities because international law permits the foreseeable although unintentional harming and killing of a proportionate and necessary number of civilians, peacekeepers may mitigate mass atrocities given the available evidence.

Rebuilding After Mass Atrocities and Uses of Force Short of War Rebuilding after war or atrocities can also involve the use of force short of war. The 2001 ICISS authors included rebuilding in their seminal report. A central goal of rebuilding should be avoiding a return to mass violence. Although state leaders did not include rebuilding explicitly in the 2005 WSOD, even if one is only concerned with prevention, the evidence suggests rebuilding is important for the following reason. In the 2000s, 90 per cent of the civil wars were wars that reoccurred (Walter 2015: 1242–3). Since the Second World War, about two thirds of mass atrocities occurred during war (Bellamy 2011: 2). Therefore, preventing atrocities entails some form of adequate rebuilding after wars and atrocities to avoid civil war, thereby decreasing the chances of further mass atrocities. Re-establishing a functioning state, police force and criminal justice system are important means to recreating a stable environment in which mass atrocities are unlikely to occur. This likely involves some sort of demilitarisation, disarmament and reintegration (DDR). After a conflict ends, peacekeepers may also play an important role. Some scholars have found that civil wars are less likely to reoccur the more that is spent on UN peacekeepers (Collier et al. 2008) and where peacekeepers are present (Fortna 2004, 2008), whereas others have found no relationship between UN peacekeeping and civil war reoccurrence (Walter 2015). Recall that because approximately two thirds of mass atrocities occur during war, reducing the chances of war reduces the chances of atrocities (Bellamy 2011: 2). There is also evidence that UN peacekeepers decrease abuses against civilians in post-conflict settings (Kathman and Wood 2014). One might wonder whether it is the presence 65

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of international observers or the threat of force that makes this difference. Kathman and Wood find that UN peacekeepers, but not UN observers, have a positive impact on civilian protection (Kathman and Wood 2014). Again, not all human rights abuses constitute mass atrocities, but such abuses can rise to the level of atrocities and therefore peacekeepers can play an important role in post-conflict situations. UN peacekeeping is only one type of peacekeeping. Other actors that provide peacekeepers include NATO, the African Union and the militaries of specific states (such as France). Such deployments of uses of force short of war can and have come in many forms. For instance, during and after the wars and atrocities in the Balkans in the 1990s, first the UN, then NATO and then the European Union deployed peacekeepers. Recent research suggests that having a UN or civilian protection mandate is essential for peacekeepers to effectively protect civilians’ physical integrity rights (Murdie 2017).

Ethical implications I have shown that canonical R2P documents support and indeed require many types of uses of force short of war under many situations. Working out a detailed moral theory of when it would be permissible to use what types of force short of war in all circumstances is beyond the scope of this chapter. Instead, I will argue that uses of force short of war in times of peace and as alternatives to war should be subject to moral constraints that vary from times of peace and war not because of fundamental principles apply but rather because of the different circumstances. In times of peace, the uses of force should be the minimum to maintain a just rule of law. As alternatives to war, uses of force short of war are permissible and required in a variety of circumstances, including instead of war at least when they will have an equal or greater probability of success, harm the fewest innocent civilians and meet the other just war theory precepts, ceteris paribus. Uses of force short of war will be able to achieve the goals of R2P in the vast majority of situations (such as police upholding the rule of law in times of peace) and for this reason developing further ethical guidelines on such uses of force is imperative. 66

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Of course, generally non-violent options should be used instead of any violent ones and generally actors should employ a wide range of non-violent options before any violent options are taken to protect populations from mass atrocities. Just as police are trained to use force as a last resort and de-escalate situations that could result in greater unjust harms to innocents, generally actors should use non-violent tactics to achieve their aims.

Uses of Force Short of War to Maintain Rule of Law The rule of law should not be an end in itself, because laws can be unjust and have been used to support atrocities from slavery to genocide. Nonetheless, the rule of law is a necessary although not sufficient tool for ensuring the prevention of mass atrocities. By relying on typical police work, any just rule of law rests on the use of force short of war. Developing a theory of just use of force by a state domestically is beyond this chapter, but several aspects of this type of force are important here. First, the police and security forces should be trained and commanded in ways that prevent them from committing atrocities themselves. States have primary responsibility for such police training, but the international community can and should aid states in forming functioning police and judiciaries. Non-state groups should generally abstain from uses of force. Even when faced with difficult situations such as the protesters faced in the Arab Spring, Chenoweth and Stephan find that nonviolent resistance is often more successful at achieving the aims of overthrowing a dictator and expelling a foreign occupying force than violent revolts (Chenoweth and Stephan 2011). This finding would not prohibit uses of force against regimes committing atrocities in all situations, but it does suggest, counterintuitively, that strategic non-violence may be more likely to achieve the just cause than violent responses.

Uses of Force Short of War Instead of War The rule of law domestically is generally distinct from the extraordinary uses of force in war. For this reason, I discuss such uses of force separately. Some commentators equate R2P with armed humanitarian intervention. This is doubly incorrect. R2P requires both that peaceful means are generally used instead of violent ones and that force short of war be used in a wide array of cases instead 67

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of war, at least when uses of force short of war are as or more likely than war to meet the just war theory precepts captured in the ICISS report. This raises the question of when force short of war should be used instead of war. According to standard interpretations of just war theory, a number of criteria must generally be met for war to be permissible. These include just cause, right intention, legitimate authority, last resort, proportionality, necessity and reasonable chances of success. Typically, all of these precepts must be met in order for a war to be morally permissible. At least two of these precepts, proportionality and necessity, generally prohibit war when uses of force short of war would have the same or greater probability of success in achieving the same just cause and meet the other just war theory precepts. For instance, some argue that assassinations are permissible (Altman and Wellman 2008) or required instead of war (Aloyo 2013) whenever the conditions for a just war are met and an assassination would have the same probability of success with the lowest likelihood of casualties of innocents, including compared to peaceful options, holding everything else constant. Some scholars argue that different ethical standards should govern war and uses of force short of war (Brunstetter 2016; Brunstetter and Braun 2013), whereas others argue that the same standards should apply to any uses of force (Frowe 2016). I argue that either set of standards generally requires the uses of force short of war instead of war at least whenever they are equally likely to meet all just war theory precepts, holding other things constant. The reason why uses of force short of war are required in such circumstances instead of war is because of necessity and proportionality.

Necessity Necessity roughly demands that the considered violence be required in order to achieve a goal. There are two types of necessity, ad bellum and in bello. Thomas Hurka equates ad bellum necessity with last resort, meaning war is only permissible if it is the only means of achieving a just cause (Hurka 2008: 129).2 If the just cause could be achieved by diplomacy, for instance, war would not be necessary and hence it would be impermissible. The in bello component permits only those acts of violence that are likely necessary in order to obtain the just cause. If a commander could either kill 10,000 combatants or 100,000 combatants to win a war, holding all else 68

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equal, the commander must choose the first option even if all the combatants are fully liable to lethal defensive harm and even if killing the greater number would be proportionate. The justification for necessity is identical for ad bellum and in bello, namely that war should not inflict unnecessary harm on liable or non-liable individuals. Seth Lazar advances a sophisticated account of necessity, which weighs the expected costs and benefits and is only met if the expected costs are likely to exceed the expected benefits in terms of ‘morally weighted harms’ with the evidence available to the potential victim (Lazar 2012: 13). Lazar argues that proportionality is required to satisfy his account of necessity (Lazar 2012: 17–18). It requires a pairwise comparison among all options with some chance of success and only permits the one with highest chance of success of achieving the least morally weighted harm, taking into account the magnitude of the unjust threat. Necessity places obvious constraints on war because in general war harms far greater numbers of innocents than peaceful measures and uses of force short of war. If some type of force short of war were all that is necessary – in Lazar’s terms of lower expected morally weighted harms – in order to achieve a just cause, war would be impermissible. In other words, the widely accepted just war theory principle of necessity requires that uses of force short of war must be used instead of war whenever war is not necessary to achieve a just cause and non-violent alternatives are unlikely to succeed or their costs are excessive. Although the authors of the ICISS report do not endorse a specific account of last resort, they nonetheless include last resort in their analysis about when the use of force is permissible (Evans et al. 2001: 36–7).

Proportionality Proportionality entails a comparison of the relevant goods that are likely to be achieved and the likely relevant harms across a number of violent and non-violent alternatives (Hurka 2005). An act of violence or war satisfies this criterion only if the relevant goods outweigh the relevant harms. Some scholars, such as Hurka, additionally require that, in order for proportionality to be satisfied, the proposed action must be the violent or non-violent policy that inflicts the least amount of harm to innocents, holding other things constant. What counts as relevant is contested and some 69

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of the likely candidates for comparison, such as state sovereignty and the life of innocent civilians, are difficult to compare (Rodin 2002: 115). What is at least one widely accepted relevant factor is the harm to innocents. Seth Lazar usefully discusses ‘morally weighted harm’, by which he means that harms should be weighed according to one’s degree of liability to defensive harm (Lazar 2012: 7). Those who are fully liable to the harm they suffer should not be counted in proportionality calculations, whereas harms caused or avoided to those who are wholly or fully innocent should count. Proportionality not only requires that the relevant goods outweigh the relevant harms, but in Hurka’s formulation, ‘war is permitted only if its net outcome is better than those of all alternatives’ (Hurka 2005: 38). Uses of force short of war should be one of these considerations as alternatives to war. Once such uses of force short of war are included in proportionality calculations, they must be used instead of war at least whenever they will likely result in few relevant harms – as they surely would most of the time because of the inherently less destructive nature of uses of force short of war – and as long as they have an equal or greater chance of success. Because the decision to use force requires decision-making before force is used, proportionality relies on prospective judgments. These are inevitably fallible. An act may be appropriately judged to be proportionate before an act occurs but actually be disproportionate and not be wrong because actors made the correct judgment given the information available to them at the time and vice versa. In a subsection on proportionality, the authors of the ICISS report write that ‘[t]he scale, duration, and intensity of the planned military intervention should be the minimum necessary to security [sic] the humanitarian objective in question’ (Evans et al. 2001: 37). Although they do not explicitly discuss uses of force short of war as category unto itself and separate from war, this implies that the original authors of the report believed that uses of force short of war should be used whenever possible, contingent on a number of other features. As I have argued elsewhere (Aloyo 2013), uses of force short of war should be used instead of war whenever they have the same or greater probability of success and that the morally 70

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weighed harms are less for uses short of war. It does not follow from this claim that uses of force short of war must always be tried before war is permissible. Suppose that peaceful means and uses of force short of war were unlikely to succeed and at the same time allow an aggressor to continue to build up his or her defences to the extent that a later war would harm far more innocent civilians than warring sooner. In such circumstances, war without first trying uses of force short of war would be the least bad alternative. Uses of force short of war are also able to mitigate two important objections to armed humanitarian intervention. Some worry that humanitarian wars may be too costly for the states involved. A benefit of using forces sort of war is that, under pillars two and three, states may be more likely to be able to shoulder the costs of such actions because they are less financially, politically and militarily costly than war. This is because the potential number of forces involved, political costs and economic costs are in general far less than war. Another related objection is that resources spent on war would have a greater humanitarian benefit elsewhere and therefore AHI should almost never be executed even when they meet widely accepted just war theory criteria (Valentino 2011). The impact of the money and resources spent on war might save the lives of far more innocent people if the resources were devoted to development, such as fighting hunger, diarrhoea and other easily preventable poverty related deaths. Because uses of force short of war are generally far less costly than wars themselves and according to my argument should be used when they are as likely to achieve the same just causes as war, the imbalance between comparable war and poverty alleviation benefits is mitigated.

Conclusion R2P requires some types of the use of force in many more circumstances than only AHI. I have argued that R2P requires uses of force short of war in numerous situations, including in virtually every existing society. In times of peace, just policing and the rule of law are critical to preventing mass atrocities. Furthermore, 71

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R2P requires uses of force short of war instead of war at least whenever they are equally or more likely than war to meet the just war theory precepts enumerated in the ICISS report and elsewhere. A wide range of tools have been developed in order to deal with threats of mass atrocities, including a range of forceful actions that stop short of war. All of that said, uses of force short of war should be used cautiously (including in common law enforcement operations), especially given the risk of escalation and likelihood of harming innocents whenever one uses force.

Notes 1. Thanks to Tessa Alleblas, Eugenio Cusumano, James Pattison, and participants at a University of Leiden workshop in 2016 for helpful feedback on earlier versions of this chapter. Any mistakes remain solely my own. 2. Although I have argued against including last resort as a requirement for the permissible use of force, including a necessity account of last resort (Aloyo 2015: 191–2), I advance this argument here because many scholars and politicians still often cite last resort as an important principle regarding when the use of force is permissible. Even if one agrees that last resort should not be a principle for deciding when war is permissible, one can still agree with my argument here because of the importance of proportionality.

References Aloyo, Eamon (2013), ‘Just Assassinations’, International Theory, 5: 3, 347–81. Aloyo, Eamon (2015), ‘Just War Theory and the Last of Last Resort’, Ethics & International Affairs, 29: 2, 187–201. Aloyo, Eamon (2016), ‘Reconciling Just Causes for Armed Humanitarian Intervention’, Ethical Theory and Moral Practice, 19: 2, 313–28. Altman, Andrew and Christopher Wellman (2008), ‘From Humanitarian Intervention to Assassination: Human Rights and Political Violence’, Ethics, 118: 2, 228–57. Badescu, Cristina Gabriela (2012), Humanitarian Intervention and the Responsibility to Protect: Security and Human Rights, New York: Routledge.

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Responsibility to Protect Ban, Ki-moon (2009), ‘Implementing the Responsibility to Protect’, United Nations General Assembly, 12 January, (last accessed 30 June 2017). Bellamy, Alex (2011), ‘Mass Atrocities and Armed Conflict: Links, Distinctions, and Implications for the Responsibility to Prevent’, Policy Analysis Brief, The Stanley Foundation, (last accessed 3 August 2018). Bellamy, Alex (2015), The Responsibility to Protect: A Defence, Oxford: Oxford University Press, 1st edn. Brunstetter, Daniel (2016), ‘Jus ad vim: A Rejoinder to Helen Frowe’, Ethics & International Affairs, 30: 1, 131–6. Brunstetter, Daniel, and Megan Braun (2013), ‘From Jus ad bellum to Jus ad vim: Recalibrating Our Understanding of the Moral Use of Force’, Ethics & International Affairs, 27: 1, 87–106. Chenoweth, Erica, and Maria Stephan (2011), Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict, New York: Columbia University Press. Collier, Paul, Anke Hoeffler and Måns Söderbom (2008), ‘Post-Conflict Risks’, Journal of Peace Research, 45: 4, 461–78. Evans, Gareth, Mohamed Sahnoun, Gisèle Côté-Harper, Lee Hamilton, Michael Ignatieff, Vladimir Lukin, Klaus Naumann, Cyril Ramaphosa, Fidel Ramos, Cornelio Sommaruga, Eduardo Stein and Ramesh Thakur (2001), The Responsibility to Protect: The Report of the International Commission on Intervention and State Sovereignty, Ontario: IDRC Books. Fortna, Virginia Page (2004), ‘Does Peacekeeping Keep Peace? International Intervention and the Duration of Peace after Civil War’, International Studies Quarterly, 48: 2, 269–92. Fortna, Virginia Page (2008), Does Peacekeeping Work?: Shaping Belligerents’ Choices after Civil War, Princeton: Princeton University Press. Frowe, Helen (2016), ‘On the Redundancy of Jus ad vim: A Response to Daniel Brunstetter and Megan Braun’, Ethics & International Affairs, 30: 1, 117–29. Goldstone, Richard and Carl Tham (2001), Kosovo Report: Conflict, International Response, Lessons Learned, New York: Oxford University Press. Hobbes, Thomas [1651] (1993), Hobbes: Leviathan, Cambridge: Cambridge University Press. Hultman, Lisa, Jacob Kathman and Megan Shannon (2013), ‘United Nations Peacekeeping and Civilian Protection in Civil War’, American Journal of Political Science, 57: 4, 875–91.

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Force Short of War in Modern Conflict Hultman, Lisa, Jacob Kathman and Megan Shannon (2014), ‘Beyond Keeping Peace: United Nations Effectiveness in the Midst of Fighting’, American Political Science Review, 108: 4, 737–53. Hurka, Thomas (2005), ‘Proportionality in the Morality of War’, Philosophy & Public Affairs, 33: 1, 34–66. Hurka, Thomas (2008), ‘Proportionality and Necessity’, in Larry May (ed.), War: Essays in Political Philosophy, Cambridge: Cambridge University Press, pp. 127–44. International Criminal Court (1998), ‘Rome Statute’, International Criminal Court, 17 July, (last accessed 3 August 2018). Kathman, Jacob D. and Reed M. Wood (2014), ‘Stopping the Killing During the “Peace”: Peacekeeping and the Severity of Postconflict Civilian Victimization’, Foreign Policy Analysis, 12: 2, 149–69. Lazar, Seth (2012), ‘Necessity in Self-Defense and War’, Philosophy & Public Affairs, 40: 1, 3–44. McMahan, Jeff (2009), Killing in War, Oxford: Oxford University Press, 1st edn. Murdie, Amanda (2017), ‘R2P, Human Rights, and the Perils of a Bad Human Rights Intervention’, Global Responsibility to Protect, 9: 3, 267–93. Pattison, James (2010), Humanitarian Intervention and the Responsibility To Protect: Who Should Intervene?, New York: Oxford University Press. Pinker, Steven (2011), The Better Angels of Our Nature: Why Violence Has Declined, New York: Viking Adult. Rodin, David (2002), War and Self-Defense, New York: Oxford University Press. Roff, Heather (2015), ‘Covert Actions and the Responsibility to Protect’, Global Responsibility to Protect, 7: 2, 167–89. Scheid, Don E. (ed.) (2014), The Ethics of Armed Humanitarian Intervention, Cambridge: Cambridge University Press. United Nations General Assembly (2005), ‘World Summit Outcome Document’, United Nations, 16 September, (last accessed 3 August 2018). United Nations (1945), ‘Charter of the United Nations’, (last accessed 3 August 2018). Valentino, Benjamin A. (2011), ‘The True Costs of Humanitarian Intervention: The Hard Truth About a Noble Notion’, Foreign Affairs, 90: 6, 60–73.

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Responsibility to Protect Walter, Barbara F. (2015), ‘Why Bad Governance Leads to Repeat Civil War’, Journal of Conflict Resolution, 59: 7, 1242–72. Weber, Max [1919] (1958), ‘Politics as Vocation’, in From Max Weber: Essays in Sociology, H. H. Gerth and C. Wright Mills (eds and trans.), Oxford: Oxford University Press, pp. 77–128. Wellman, Christopher (2012), ‘Debate: Taking Human Rights Seriously’, Journal of Political Philosophy, 20: 1, 119–30. Williams, Abiodun (2000), Preventing War: The United Nations and Macedonia, Lanham: Rowman & Littlefield.

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5

From Jus ad bellum to Jus ad vim: Recalibrating Our Understanding of the Moral Use of Force1

Daniel Brunstetter and Megan Braun

Introduction In the preface of the 2006 edition of Just and Unjust Wars, Michael Walzer makes an important distinction between, on the one hand, ‘measures short of war’, such as imposing no-fly zones, pinpoint air/missile strikes and CIA operations, and on the other, ‘actual warfare’, typified by a ground invasion or a large-scale bombing campaign. Even if the former are, technically speaking, acts of war according to international law, he proffers that ‘it is common sense to recognize that they are very different from war’. While they all involve ‘the use of force’, Walzer distinguishes between the level of force used: the former, being more limited in scope, lack the ‘unpredictable and often catastrophic consequences’ of a ‘full-scale attack’ (Walzer 2006a: xv–xvi).2 Walzer calls the ethical framework governing these measures jus ad vim (the just use of force) and he applies it to state sponsored uses of force against both state and non-state actors outside a state’s territory that fall short of the quantum and duration associated with traditional warfare. Compared to acts of war, jus ad vim actions present diminished risk to one’s own troops, have a destructive outcome that is more predictable and smaller in scale, severely curtail the risk of civilian casualties and entail a lower economic and military burden. These factors make jus ad 79

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vim actions nominally easier for statesmen to justify compared to conventional warfare, though this does not necessarily mean that these actions are morally legitimate or that they do not have potentially nefarious consequences. Just war scholars, however, often do not differentiate between force and war, but rather talk about bellum justum as if all uses of force implied the same moral challenges. The tendency is therefore to evaluate forces short of war through the lens of jus ad bellum.3 We question whether this assumption is warranted. In particular, we inquire whether jus ad bellum offers a useful moral framework for assessing the acts of force short of war that increasingly characterise global conflict. Thus, in the first part of this chapter, we articulate the limitations of jus ad bellum principles in evaluating recent trends in international affairs – such as the rise of non-state actors and the advancements in precision weapons technology (for example, drones) – that have weakened the sovereignty norm and facilitated small-scale uses of force to combat perceived threats. We argue that the jus ad bellum framework does not offer sufficient leverage for assessing the jus ad vim actions that have become the hallmarks of the Obama administration’s approach to combating terrorism. While some scholars have begun to imagine how jus ad bellum principles might look different when adapted to the use of limited force against non-state actors, there has been no systematic attempt to theorise about jus ad vim (Williams 2008: 598; Brunstetter and Braun 2011; Kreps and Kaag 2012: 278, 280). We therefore ask: What would a theory of jus ad vim that counters the shortcomings of the jus ad bellum framework look like? In the second part of the article we contend that a viable theory of jus ad vim can be constructed by recalibrating jus ad bellum criteria and adding a new principle – the probability of escalation. Determining the moral distinctiveness of jus ad vim helps us to evaluate the spectrum of options available to statesmen, which range from non-violence, to force short of war and ultimately to war itself. However, we warn that jus ad vim raises a host of tensions that just war theorists must be mindful of and point to some challenges to which thinking in terms of jus ad vim may itself give rise. We also raise questions about jus ad vim that open up future paths of research on the topic.

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Small-scale force and the limitations of jus ad bellum C. A. J. Coady identifies a recent trend in forms of violence, namely, that ‘the last quarter of the twentieth century and the beginning of the twenty-first century have seen a dramatic decline in warfare understood as direct state-to-state conflict’ (Coady 2008: 4). An important part of this shift is due to the rise of non-state actors, such as al-Qaeda and its affiliates, which pose significant threats to international peace and security, but do not have international legal status and operate in the porous or disputed border regions of sovereign states. As states seek to respond to the perceived threat of terrorism, the struggle against non-state actors has led to the diminished importance of geographic boundaries in circumscribing the legitimate use of force and raised questions about the violability of a state’s right to territorial integrity. This process began in the 1990s, a decade that saw humanitarian crises in Rwanda and the Balkans challenge the viability of the legalist paradigm. The ensuing debates about the sanctity of territorial integrity, followed by the emergence of the responsibility to protect norm, mark a key shift in traditionally state-centric just war thinking, which considered the violation of territorial sovereignty an exception to the sovereignty norm. With regard to non-state actors, Eric Heinze argues that their rise has led to the emergence of a ‘regime of non-state responsibility’, which means that weak states are not responsible for what goes on within their (uncontrolled) borders. But the consequences, Heinze argues, are two-fold. First, it has led to ‘the expansion of the right of self-defence under international law’, in a ‘limited and targeted fashion’, against non-state actors within another state (Heinze cites a 2002 drone strike against al-Qaeda as a legal precedent). Second, this new regime has caused the loosening of ‘the normative and legal constraints on using force against states for their tolerance of such activity within their borders’ (Heinze 2011: 1080, 1082, 1091). The result is a serious challenge to the territorial definition of sovereignty. While Heinze suggests this may increase the likelihood of interstate conflict, the limited scope of such actions – particularly in the

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case of drones – has not yet led to expanded conflict, but rather has increased instances of jus ad vim. While war used to be easily defined as a zone of combat where lethal force was justified (to be distinguished from a zone of peace, where it was not), the struggle against terrorism has created ‘inbetween spaces’ of moral uncertainty where force is used on a consistent and limited scale, but war is not declared (Walzer 2007: 480). These are places where terrorist groups have taken up residence and the host country does not have the will and/or capacity to deal with the threat that they pose, such as in the border areas between Pakistan and Afghanistan or the southern region of Yemen. Who has the right to address the threat emanating from these places and with what level of force? Walzer’s conclusion – that international policing actions, in conjunction with actions by local authorities, should be tried first – is intuitively appealing. If these fail, then the unilateral use of lethal force by the state that feels threatened would become warranted. However, the ethical challenge lies in determining when the threshold separating international policing and unilateral force has been crossed and what level of force is justified. The response by the United States to the events of 9/11 serves as an illuminating example. The Authorization for the Use of Military Force passed by Congress in September 2001, in conjunction with President George W. Bush’s classified Memorandum of Notification, signed in September of that year, gave the Central Intelligence Agency (CIA) the right to kill members of al-Qaeda in anticipatory self-defence virtually anywhere in the world. Bush’s struggle against al-Qaeda, however, took place predominantly within the framework of traditional just war thinking by waging war against sovereign states wherein al-Qaeda was perceived (not always accurately) to be operating – most notably, Afghanistan and Iraq. And insofar as he undertook only a few jus ad vim acts, the ethical concerns they raised, while duly noted by a few scholars, remained peripheral to broader just war debates. Nevertheless, his policies opened the way for a mode of conflict that transcends international borders. President Barack Obama, despite rejecting Bush’s view of jus ad bellum, has continued – indeed expanded – the precedent established by his predecessor. What paved the way for this shift was, first, the perceived failure of the Bush Doctrine. Citing as consequences of the Bush approach an ‘overstretched’ budget, a ‘resurgent’ al-Qaeda, 82

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a ‘strengthened’ Iran and the tarnished global image of the United States, Obama clearly repudiated the jus ad bellum ‘mind-set’ that legitimated the Iraq War (CNN 2008). A second element that facilitated this shift was Obama’s use of drone technology. From a political perspective, drones provide a precise and calibrated tactic for addressing the security threat linked to non-state actors. They can be used to target combatants, while significantly reducing the risk to US troops and diminishing the number of civilian casualties (Braun 2012). The result has been a six-fold increase in drone strikes in Pakistan under President Obama and an increase of strikes in several other countries, such as Yemen and Somalia (Bergen and Braun 2012). This use of violence, while certainly less intense and widespread than that of the multiple wars waged by the Bush administration, nevertheless raises serious human rights concerns.

Forces Short of War and the Issue of Human Rights The concept of just war must weigh two views of rights against each other: a state’s right to sovereignty and universal human rights (especially those of non-combatants). In an ideal world, a just use of force should satisfy both, but the reality is that there are no easy answers as to the right balance. Some scholars suggest that just war thinking reinforces individual human rights because it requires the protection of non-combatants and endorses the Responsibility to Protect Doctrine, while critics argue that just war principles condoning the violation of state sovereignty serve to reinforce Western (and in particular, American) exceptionalism, thus promoting a form of neo-imperialism that privileges the capacity of powerful states to use force (Williams 2008: 597). Technology has exponentially increased mankind’s capacity for violence through nuclear weapons, but it has also facilitated more limited applications of force that reduce the destruction of combat. Aircraft can provide a less invasive form of intervention than ground troops. Precision weaponry and so-called smart bombs allow for highly targeted and localised uses of force. More recently, some have claimed that drones, compared to other weapons systems, better adhere to the principles of discrimination and proportionality (Brennan 2012). In this vein, proponents of drones claim that their use is a ‘moral imperative’ to avoid the unnecessary risk to those fighting for a just cause (Strawser 2010). 83

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In an earlier article we compared the number of civilian casualties at the height of the war in Iraq (34,500 in 2006) to drone deaths in Pakistan from 2004 to 2011 (as many as 2,283), concluding that drones seem to cause less damage than the often unpredictable and destabilising uses of large-scale force (Brunstetter and Braun 2011: 348). Even within the category of drone strikes, statistics indicate collateral damage is decreasing. While the US government’s claims of zero civilian casualties are manifestly false and good evidence is hard to come by, research by the New America Foundation suggests that of the over 330 US drone strikes in Pakistan since 2004, ‘the average non-militant casualty rate over the life of the program is 15 – 16 percent. In 2012 it has been 1 – 2 percent, down sharply from its peak in 2006 of over 60 percent’ (Bergen and Tiedemann 2010). Moreover, in theory at least, the damage caused to the civilian infrastructure of a state subjected to jus ad vim should be less than that caused by large-scale interstate wars. Small-scale uses of force may still have wide-ranging effects, but the destructive effects are believed to be more predictable. This makes it possible to maintain a stronger correlation between the use of force and its intended effects. Kenneth Anderson puts it succinctly: If the facts ascribed to the technology are correct, technology provides a deus ex machina and an escape from the jus in bello proportionality trap. After all, everything in the jus in bello category here works together, not against each other. The technology provides force protection to (one side’s) combatants; it provides greater protection to civilians through precision targeting. (Anderson 2012)

The result is the perception that such uses of force follow from and reinforce the very human rights norms that prompted a norm of casualty aversion and intolerance for collateral damage in battle. However, on a practical level the conceptual boundaries between small-scale and large-scale uses of force are fluid because the number of casualties does not tell the full story. Technology that permits jus ad vim actions, if not governed appropriately, empowers strong states to use force in ways to further their own security and interests, while placing weak states at their sufferance. We already see this happening in states such as Pakistan and Yemen, where the United States has appealed to the challenges posed by fighting terrorists in order to justify intruding into the 84

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domestic affairs of these states, sometimes without the full and open consent of their ruling governments. The problem is that while the struggle against terrorism is couched in terms of protecting human rights, the human rights of non-combatants may be sacrificed as the increased capacity for governments to satisfy the jus in bello principles of proportionality and discrimination may tempt these same governments into using force more frequently than necessary. Even if the number of civilian casualties has been reduced by the turn to jus ad vim actions, the use of armed force still raises key human rights issues. Some scholars claim that relying on technology to decrease the risk to US soldiers transfers the risk to non-combatants in the area of conflict.4 This pattern is evident in the casualty figures from recent conflicts, such as Kosovo, where there were no allied casualties, and the war in Afghanistan, where, as John Williams observes, ‘non-combatants will be protected so long as their protection does not require taking measures that may endanger the lives of soldiers’ (Williams 2008: 589). The same could be said of President Bush’s ‘global war on terror’ and President Obama’s drone campaign (Bellamy 2005: 289; Brunstetter and Braun 2011: 350–1).

The Inadequacy of Jus ad bellum Principles in Guiding Force Short of War When one thinks of the principles of the just war tradition, one tends to think in terms of their capacity to capture the moral dilemmas of large-scale employments of force. Brian Orend’s definition of war serves as a good example: War should be understood as an actual, intentional and widespread armed conflict between political communities . . . War is a phenomenon which occurs only between political communities, defined as those entities which either are states or intend to become states (in order to allow for civil war) . . . Further, the actual armed conflict must be intentional and widespread: isolated clashes between rogue officers, or border patrols, do not count as acts of war. The onset of war requires a conscious commitment and a significant mobilization on the part of the belligerents in question. There’s no real war so to speak until the fighters intend to go to war and until they do so with a heavy quantum of force. (Orend 2006: 2–3)

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An International Law Association report on the meaning of armed conflict tracks closely with Orend’s definition: As a matter of customary international law a situation of armed conflict depends on the satisfaction of two essential minimum criteria, namely: a. the existence of organised armed groups b. engaged in fighting of some intensity. (O’Connell et al. 2012)

The problem is that the terms ‘war’ and ‘armed conflict’ do not adequately capture the full spectrum of force available to statesmen. The right to wage war is traditionally justified by reference to the duty of leaders to defend the members of their state from aggression and the legal permission, informed by Article 51 of the United Nations (UN) Charter, to use force in self-defence. When one state wages an aggressive war against another, it is easy to see how a large-scale use of force could be warranted as a response and how the jus ad bellum criteria could govern this decision. However, the evolving notion of threat illustrates the need for a more calibrated view of force. In cases of threat associated with terrorism, humanitarian catastrophe, and the spread and use of weapons of mass destruction, the potential for significant human rights violations warrants some kind of response, but not necessarily the declaration of a full-scale international war. According to recent research by the Council on Foreign Relations, between 1991 and June of 2009 the United States carried out thirty-six ‘discrete military operations’, which they define as ‘a single or serial physical use of kinetic military force to achieve a defined military and political goal by inflicting casualties or causing destruction, without seeking to conquer an opposing army or to capture or control territory’ (Zenko 2010). Considering additional uses of force complicates matters more. No-fly zones – which utilise air power in support of peace operations by denying the enemy use of designated air space and provide a means for monitoring ground operations (Benard 2004) – arguably constitute a lower level of force compared to war, though they still require some level of violence to enforce. No-fly zones have been employed three times in the last two decades, namely, in Iraq from 1991 to 2003, Bosnia and Herzegovina from 1993 to 1995, and Libya in 2011. While seemingly less violent than full-scale war, they have significant costs 86

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insofar as they require strong regional support to access local air bases and acquire fly-over permission. Moreover, their maintenance requires the implied threat of force, which puts multiple categories of peoples – civilians and soldiers – at risk. As Coady argues, the Iraq containment zone opened the way for human rights violations by authorising approximately 34,000 sorties per year between 1991 and 2002. Coady points to 300 civilian deaths as well as ‘many Iraqi military deaths and much property destruction’ that lack adequate documentation (Coady 2008: 6). In addition, despite the report by the International Law Association on the meaning of armed conflict that argues that terrorist attacks do not amount to just cause for small-scale uses of force (O’Connell et al. 2012: 332), US government officials continue to operate within a moral grey zone created by the increased influence of non-state actors, which, some argue, blurs the relationship between morality, international law and the use of force (Wittes 2008: 13). Discussing the rise of drone warfare, Kenneth Anderson argued before the US House of Representatives in 2010 that the strategic advantage of drones is their ability to provide a ‘limited, pinprick, covert strike’ in order ‘to avoid a wider war’ (United States Congress House Subcommittee on National Security and Foreign Affairs 2010). John Brennan, White House counterterrorism advisor, recently defended drones in the following way: As a matter of international law, the United States is in an armed conflict with al-Qaeda, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defence. There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat. (Brennan 2012)

Critics would argue that Brennan has misinterpreted international law altogether (Alston 2010). But while one could simply retort that such acts violate international law, it is important to adjudicate between what is, strictly speaking, unlawful and what is morally and strategically justifiable. By recognising a political reality in which statesmen retain their prerogative over a wide range of activities that involve the use of lethal force, it becomes clear that 87

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the ethical challenges facing statesmen have not diminished; they are merely different. The limited level of force employed to combat non-state actors points to a problematic assumption in just war thinking, namely, that advances in technology do not alter the interpretation of jus ad bellum principles. Anderson, for example, assumes that technology does not change the way we think about just cause (Anderson 2012: 398). Additionally, he speaks as though jus ad bellum standards are sufficient for evaluating limited uses of force and to prevent unjust uses of these types of force. Yet while technology may effectively reduce the risk to soldiers and the probability of collateral damage, it may also lead to more frequent uses of low-level force to quell a perceived threat if the moral and political calculus – what is understood as just cause – is altered based on the scale of force being applied. Moreover, as we have argued in a previous article, the risk becomes, somewhat paradoxically, that drones forestall the threshold of last resort for larger military deployment, but that the last resort criterion is not applied to drone strikes themselves because the targeted killing of (alleged) terrorists becomes the default tactic. Thus, the use of jus ad vim as a means to enhance a state’s capacity to act on just cause proportionately and discriminately may lead to its propensity to do the opposite (Brunstetter and Braun 2011: 345–6). Indeed, US drone targeting practices have expanded in worrisome ways. The initial policy was to target only high-level leaders, but the targeting list has since widened to include signature strikes against individuals based on suspicious patterns of behaviour. New research suggests that under the Obama administration only 13 per cent of drone strikes have killed a militant leader, while leaders represent just 2 per cent of all drone related fatalities (Braun 2012). Even if such targeting is successful in keeping al-Qaeda on the run, this does not necessarily make such a practice just. Indeed, recent reports suggest that within the US government there is debate about whether certain drone strikes satisfy the criterion of last resort (Shane 2012). In sum, we suggest that these concerns point to the need to inquire about what jus ad bellum principles mean in the context of drone strikes. More generally, they illustrate the importance of understanding how using force short of war might change just war principles and the need to theorise about a more precise understanding of when force, at all levels of violence, can be justified. 88

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The principles of jus ad vim In this section, we propose a set of principles to help navigate the ethical challenges with regard to the use of force short of war. For contemporary just war theorists, the challenge lies in attending to the potentially different moral processes at work in determining the appropriate level of force to respond to specific international concerns, including humanitarian intervention, the threat of non-state actors and the spread of weapons of mass destruction (WMD).

The Permissive Nature of Just Cause and Understanding Last Resort Understanding the distinctiveness of jus ad vim begins with a definition of just cause. In vim, as with bellum, self-defence and other-defence are the only legitimate causes for the use of force. However, as Walzer proffers, a theory of jus ad vim should be ‘more permissive’ than jus ad bellum, but not ‘overly tolerant or permissive’ (Walzer 2006b). In jus ad vim, defence is interpreted more broadly. This means there are more cases in which injuria justifies some turn to force, but not necessarily war. Within the context of jus ad vim, a state has just cause to use measures short of war when responding to injuria against its interests or citizens. This includes responding to terrorist bombings, attacks on embassies or military installations and the kidnapping of citizens. These are acts of aggression that justify the right to a forceful response. Imminent threats of terrorist attacks also provide just cause, as does responding to ongoing or impending humanitarian catastrophes. Threats linked to concerns about WMD present a possible just cause, depending on the conditions; if a state that has WMD is on the brink of collapsing into a failed state, or if a state is about to use such weapons on its own population, then jus ad vim acts are legitimate. Pre-emptive strikes to stop states from acquiring WMD require a caveat. We will return later to several criteria that restrict the way in which just cause can be acted upon. There is, nevertheless, good reason to be sceptical of arguing for a theory of the use of force that is more permissive than that allowed in traditional just war thinking. Coady identifies the core logic of Walzer’s distinction between jus ad bellum and jus ad 89

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vim, namely, that ‘there should be greater reluctance to engage in wholesale invasion than, for example, to send in a small armed unit to effect a minimal objective’. However, Coady also argues that ‘we do not need some more permissive theory quite distinct from just war thinking’, because any turn to political violence, whatever the scale, should ‘require satisfaction of the genuine reluctance constraint’ (Coady 2008: 93). Coady is quick to warn, in stronger language than Walzer, of the potential dangers of jus ad vim in promoting unnecessary and unjust uses of force. His critique reminds us that jus ad vim acts cannot diminish the ethical burden of a state seeking to use force. Jus ad vim may be more permissive than jus ad bellum, but this permissiveness needs to be circumscribed by clear restraining mechanisms that limit the ways in which a state responds to injuria. Satisfying just cause does not tell us about if and when to use force, or the level of force to be used. It simply tells us that one has the right to do so as a response to some injuria or threat, depending on the satisfaction of additional criteria. Under the rubric of jus ad bellum, a state must cross the threshold of last resort. One could imagine jus ad vim actions as being contained within this principle, as options to be tried before resorting to war. Walzer (2006b) writes, for example, that ‘force-short-of-war obviously comes before war itself’. The failure of jus ad vim actions could be taken to imply that war is a just and necessary response. Assuming just cause is satisfied, as well as the other jus ad bellum criteria, one might then argue that the threshold of last resort has been crossed and war has become justified. We, on the contrary, argue that jus ad vim should not be conceived of as part of the actions leading up to war, but rather should serve as an alternative set of options to the large quantum of force associated with war. This stems from the essence of jus ad vim – its advantage in avoiding the unpredictable and widespread destructive consequences of war. Consequently, jus ad vim must be seen as morally distinct from the jus ad bellum last resort process. Jus ad vim actions can provide a proportional response to certain security threats and to the extent they are successful they arguably raise the threshold of last resort for large-scale military deployment. However, jus ad vim actions are also responsible for satisfying some version of last resort, or what Coady calls the condition of ‘genuinely reluctant resort [to force]’ (Coady 2008: 91). 90

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Some attempt at non-violent diplomatic measures must be tried before resorting to force, even if the limited levels of violence of jus ad vim mean that this requirement is less exacting than in the case of war. Pertinent here is Walzer’s argument that non-lethal policing actions, akin to what must be undertaken in zones of peace, should be prioritised (Walzer 2007: 482). These include expanding intelligence gathering activities, freezing terrorists’ assets, creating strategic partnerships with the governments of other countries to pursue and isolate terrorists, and working to marginalise the destructive ideology of terrorist organisations. However, as Walzer recognises, policing operations will not always be adequate to address imminent threats and states cannot be required to sacrifice their right to national security in the name of individual rights. Thus, there may be instances where the injuria does not rise to a level that would justify war, but is sufficient to warrant an armed jus ad vim response. There is no exact science as to when the last resort threshold of jus ad vim is crossed, but there must be an imminent threat and conditions that rule out policing measures. Moreover, this threshold must be crossed with trepidation because, as the example of drone strikes illustrates, jus ad vim actions inevitably lead to some civilian casualties, which, in addition to its own tragedy, can stoke the fires of future violence. If abused, these actions run the risk of perpetuating an endless cycle of perceived threat, inevitable collateral damage and mutual animosity (Brunstetter 2012).

Proportionality and the Probability of Escalation Assuming the threshold of last resort for jus ad vim is breached, it is necessary to regulate jus ad vim to ensure that any use of force is consistent with the requirement of proportionality – as a just response that is mutually exclusive from war. This means the raison d’être of jus ad vim resides in the calculation of the maximally just level of force that can be applied to a specific situation, not what level to begin with and potentially escalate from. Determining jus ad vim is different from the vague concept of proportionality that cuts across both jus ad bellum and jus in bello, which many contemporary just war scholars understand as being ‘unrefined and imprecise’ (Orend 2006: 60). Thomas Hurka’s conception of proportionality – his idea that, ‘if formulated properly, the principle of proportionality can 91

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incorporate the other just war conditions about consequences’ (Hurka 2005: 37) – offers one important exception to the general characterisation of proportionality as a nebulous and indeterminate constraint. The thrust of Hurka’s arguments is two-fold. First, while it may be impossible to make precise proportionality calculations, this does not mean that some general proportionality judgments cannot be made to guide decision-making about the use of force. Hurka’s argument echoes the broader claim discussed in the previous section that advances in technology make the use of force more predictable than it used to be. Thus, second, as proportionality concerns become easier to satisfy, this will affect the way statesmen pursue just cause and understand the notion of last resort. But this is a problematic assumption. Belief in the satisfaction of the proportionality criteria is based on incomplete calculations, which has resulted in a set of moral standards that ‘may function not so much as limitations on war as tools for its liberation’ (Burke 2004: 330). Jus ad vim must seek to remedy this. If one cannot rely on proportionality calculations, how does one gauge the level of appropriate force? Partly, by defining what constitutes a successful outcome and determining which actions will enable this outcome. The salience of the probability of success criterion, as Frances Harbour explains, ‘contributes morally significant insights to pre-war jus ad bellum decisions’, for example, that ‘force and perhaps other tools are means to some goal, which may or may not entail military victory’ (Harbour 2011: 231, 234). These pre-war insights point to the relevance of thinking about jus ad vim. Determining in a jus ad vim context whether a specific use of force would succeed in its goal parallels the jus ad bellum notion of probability of success: namely, that one does not want to engage in an act that would in all likelihood fail to produce the desired outcome. However, in the context of jus ad vim, there is a second element to identifying success that determines whether resorting to limited force is justifiable. Because the probability of success of a jus ad vim action hinges on avoiding escalation to a full-blown war, a new criterion is warranted: the probability of escalation. An essential element of any jus ad vim action is that it does not lead to the outbreak of war. Escalation is defined as the elevation of hostilities to war, which increases the costs of resolving 92

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a specific crisis and introduces the totalising and unpredictable consequences of widespread conflict. If engaging in jus ad vim actions has a high probability of resulting in war, then one could argue that such actions are not justifiable and must be subject to the stricter jus ad bellum regime. This criterion is never satisfied once and for all, but must be frequently re-evaluated in the face of evolving circumstances. In theory, the probability of escalation principle serves to restrict jus ad vim by limiting recourse to it in circumstances where the decision to use limited force may lead to war. In practical terms, however, the principle is plagued by ambiguity. Three contemporary examples raise further questions. First, in the case of drone strikes in Pakistan and Yemen, there appears to be little risk (for the moment at least) that these strikes will lead to war with either country, despite instances of collateral damage. Drone strikes in Pakistan are an extension of the effort to deal with the Taliban operating in the Afghanistan–Pakistan border region, with what amounts to the tacit consent of the Pakistani government. In Yemen, the strikes target al-Qaeda operations in the southern region of the country, with the full consent of the Yemeni government. In both cases, the security of the host country is enhanced by US drone operations. However, US actions raise serious concerns regarding human rights and run the risk of inciting terrorist recruitment and eliciting a cycle of violent responses. Drones may therefore lead to the promotion of insecurity short of war, which needs to be carefully weighed against the potential for drones to succeed in denying terrorists safe havens and disrupting their activities.5 But at what point do transborder operations infringe upon the rights of the host country and risk escalation? How should jus ad vim account for potential escalation with nonstate actors capable of retaliatory terrorist attacks? And how does the level of consent attained from the host country affect the moral calculation? Second, in the case of establishing no-fly zones, the Libya example illustrates the need to delimit the boundaries between vim and bellum. Looking critically at the North Atlantic Treaty Organization (NATO)-led operation in Libya – which started as a no-fly zone tasked with protecting civilians but escalated to the objective of regime change – James Pattison argues that the just war tradition lacks ‘the conceptual tools to consider the morality of an intervention that was permissible when it was launched but that 93

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later becomes morally problematic’ (Pattison 2011). Although Pattison does not reference jus ad vim, the crux of his argument highlights the need for a more nuanced language to respond to the questions the Libya case raises. What, for instance, is the relationship of jus ad vim, protecting civilians and regime change? And how should a theory of jus ad vim relate to the responsibility to protect norm (The Economist 2012)? Finally, there is the question of what the probability of escalation criterion would mean in the case of the existential threats linked to WMD. One could imagine a caveat to our argument above. If, for instance, Iran was about to acquire nuclear weapons, or Syria was losing control of its WMD stock and if a pre-emptive use of jus ad vim actions had a good chance of neutralising such a threat, then jus ad vim actions should be tried even if their failure would lead to a war. Jus ad vim acts could thus be a means to try to eliminate a future threat involving the catastrophic use of WMD. But such a scenario raises a host of questions. Could these actions be undertaken unilaterally, or would UN Security Council approval be required? What if the threat is looming instead of imminent? And what measures would need to be taken to ensure the threat does not return in the future? In the space of this chapter, it is impossible to delineate exhaustively the probability of escalation criterion. However, the concerns we raise highlight the need for just war scholars to think about what escalation means with regard to the limited use of force.

Maximising the Rights of the Other through Right Intention and Legitimate Authority In this final section we discuss several additional criteria that limit recourse to jus ad vim. The first is linked to the jus ad bellum notion of right intention. While in a jus ad vim context the ability to act on just cause is expanded in the sense that a more favourable proportionality calculus makes it more likely that ethical restraints will be satisfied, the curtailed tactics of jus ad vim restrict the goals that can be pursued. Right intention in jus ad vim is necessarily circumscribed by the limited quantum of force that jus ad vim employs. It is unlikely that drone strikes or no-fly zones alone can remake the world order by defeating authoritarian regimes and facilitating the spread of democracy, but they can serve to cripple those seeking to undermine peace and the status quo or to 94

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threaten the innocent, such as al-Qaeda and the Qaddafi regime. Right intention must therefore be directed toward upholding the rights of the Other. In this sense, right intention for jus ad vim means quelling a specific threat, while causing the least amount of damage possible by protecting civilians. Several consequences emerge from this point. The first is that there exists a strict relationship between jus ad vim and the jus in bello principles of proportionality and discrimination. The proportionality principle is inherent in jus ad vim and is reinforced by the probability of escalation criterion. Regarding the discrimination principle, scholars such as Walzer have argued that in war one can imagine a sliding scale that allows for violations of jus in bello principles under certain circumstances – notably supreme emergency – as well as the need, when thinking ethically, to distinguish between intended and unintended effects (in other words, about the doctrine of double effect). Sometimes necessity requires, as the argument goes, breaking the rules of non-combatant immunity, while other, less extreme circumstances occasionally result in unforeseen and nefarious consequences that do not outweigh the overall justness of the use of force. This line of reasoning has been the subject of considerable debate (Walzer 2006a: 153–4; Shaw 2002: 354–5). However, in terms of jus ad vim the advancement of technology should make the consequences of the use of force more predictable, which, coupled with the necessarily limited scope of force, means that there should be no recourse to such moral loopholes. In other words, jus ad vim must maintain stricter adherence to the principle of discrimination than jus ad bellum. The scrupulous observance of the principle of discrimination is of increased importance in a jus ad vim context for multiple reasons. War assumes a significant, but potentially legitimate, risk of collateral damage because of the egregiousness of the injuria that justifies recourse to a large quantum of force. However, because the provocation that might merit a jus ad vim response is lower, there is less moral latitude for inflicting unintended harm on non-combatants. Moreover, the importance of minimising the probability of escalation requires that states assiduously avoid the collateral costs that might further inflame the passions for violence and guard against the dangers of mission creep. A state undertaking jus ad vim actions thus cannot forego the rights of the Other for the sake of its own security (or the rights of its own civilians 95

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or combatants), which can (arguably) be legitimate in jus ad bellum. While some form of force might be legitimate because just cause is satisfied, the limited nature of the threat means that the scope of force applied must also be limited in ways that uphold human rights. Jus ad vim, then, must be anchored in international law, as there is an important, symbiotic relationship between just war principles and law of this type. As Alex Bellamy notes, ‘Political leaders will always find moral arguments to justify recourse to force and positive law provides an important check on those arguments. A comprehensive account of the just war tradition cannot, therefore, avoid the interdependence between [natural and positive law]’ (Bellamy 2009: 243). However, just as just war principles need to evolve to include jus ad vim, international law may also have to evolve. While a strict interpretation of the law of armed conflict would not allow for the legal use of jus ad vim acts (even if they may be morally justified), state practices may quickly make these acts an element of customary law that will necessitate an evolution in our legal thinking that parallels the transformation of our ethical judgments. This, however, cannot occur in a legal and normative vacuum, which leads us to the role of legitimate authority in jus ad vim. One way of thinking about legitimate authority and jus ad vim is as a unilateral action, whereby a state takes matters of limited self-defence into its own hands by exercising the right contained in Article 51 of the UN Charter. According to Davis Brown, these kinds of actions exemplify the ‘right to remedy’, which, based in international law and just war principles, means that ‘an injury involving the use of force must confer a right to use force in response’, but only if such a response is proportional to the injury received and is ‘calculated to induce the state to cease its injury’ (Brown 2011: 216–17). The problem with jus ad vim unilateralism is that proportionality, as discussed above, is often miscalculated to the detriment of the rights of the Other; and defining what it means to contribute to ceasing injury, especially in the case of nonstate actors, is overly vague and may lead (as in the case of the US drone campaign) to the emergence of a problematic norm that may undermine human rights in the long run. It should also be noted that having permission of the host state to undertake jus ad vim acts – as in the case of US drone strikes in Yemen – may change 96

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the legal situation, although this does not guarantee maximising the rights of the Other, which depends on the moral scruples of the host–outside state partnership. An alternative way of thinking of legitimate authority for jus ad vim would be as part of a collective international exercise. Walzer argues for this kind of arrangement in terms of the institution of no-fly zones, thus placing jus ad vim in the context of collective security measures (Walzer 2006b). Walzer does not specifically say that all jus ad vim actions need to have international support, but one could see how jus ad vim acts could be effectively curtailed by insisting on broad approval. The existence of a large number of states willing to support and commit to lower levels of force in a specific scenario could be seen as a sign that the scale of force being applied is the maximal level that ensures protecting the rights of the Other and satisfies the probability of escalation principle, while a lack of support would suggest that recourse to jus ad vim acts is unjustified. A stronger argument regarding legitimate authority would require UN Security Council authorisation for all jus ad vim acts. This argument assumes that the level of threat for jus ad vim actions is not high enough to legitimise a state’s exercising of the right to self-defence under Article 51 of the UN Charter and that the Security Council is the central authority on the use of international force. Arguably, such a line of reasoning would help to ensure that jus ad vim actions would not be undertaken too permissively, although the risk is that the veto system may paralyse their just use. That said, Bellamy argues that despite strong criticism, the evidence shows that, in the post-9/11 era, the Security Council ‘fulfils its duty remarkably well’, which suggests it would be a reliable judge of jus ad vim actions (Bellamy 2009: 240). One could therefore view Security Council resolutions as a base criterion of legitimacy for most jus ad vim cases, but allow states to argue for exceptions in hard cases or where the collective decision-making process is flawed. As norms of sovereignty shift, technology evolves and new threats emerge, the debates within and decisions by the Security Council can help to illuminate the tensions among the use of force short of war, ethics, law and security. This can help to ensure that jus ad vim, while more permissive in responding to injuria than jus ad bellum, must also limit the scale of force that can legitimately be applied and maximise the rights of the Other. 97

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Conclusion The need for a theory of jus ad vim arises from a normative trend in military affairs, namely, the perception that in contemporary and future conflicts the large-scale use of force may give way to small-scale, or ‘surgical’, applications of force that not only have more limited and more predictable effects, such as reduced collateral damage, but also cost less and do not put ‘our’ soldiers in harm’s way. While one might suggest the ethical principles that inform the requirements of jus ad bellum are simply transferable to the evolving international system, we argue that their meaning changes significantly in a jus ad vim context and a new principle – the probability of escalation – is required. Under our interpretation of jus ad vim, just cause remains firmly rooted in self-defence, but as the ability to act proportionally expands, so too does the capacity to act on lesser threats. While this may forestall the last resort category of jus ad bellum, in the context of jus ad vim, states would still be required to privilege non-violent responses over violent ones. These violent responses must also be seen as distinct from the jus ad bellum principle of last resort. Finally, any resort to force would have to be tempered by the anticipated consequences of said force. Measures short of war should therefore serve to prevent war and thus minimise the probability of escalation while maximising the rights of the Other. This is more likely to be achieved when legitimate authority is embedded in the Security Council. The moral purchase of jus ad vim accommodates the shift toward lower levels of force made possible by advances in technology, such as drones, and by the exponential economic and military costs of war. By updating the language of the just war tradition, it helps to address the ethical, strategic and bureaucratic dilemmas facing statesmen and just war theorists today. The introduction of the jus ad vim category, however, raises many questions that require deeper inquiry. Should international law evolve to accommodate technology that privileges jus ad vim acts? If so, how? When is the threshold of last resort for jus ad vim actions crossed? In the case of WMD, when is the threshold between vim and bellum crossed? What level of civilian casualties would satisfy jus ad vim’s more restrictive discrimination principle? In what ways do 98

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the non-lethal effects of jus ad vim – such as increases in terrorist recruitment and long-term post-traumatic stress disorder – alter its moral calculus? What role might jus ad vim acts play in jus post bellum situations (for instance, in Iraq, Afghanistan and Libya)? To answer these questions, we must first take as our starting point the important distinction between force short of war and war, for the unique ethical contexts raised by the former make clear the need to further develop a theory of jus ad vim.

Notes 1. This chapter was originally published in: Brunstetter, Daniel R. and Megan Braun (2013), ‘From Jus ad bellum to Jus ad vim: Recalibrating our Understanding of the Moral Use of Force’, Ethics & International Affairs, 27: 1, 87–106. 2. In this article, we focus on jus ad vim acts that are military actions. The moral dilemmas posed by other jus ad vim acts that track less closely with common conceptions of international violence – including sanctions, blockades and cyberattacks – are beyond our scope. In future research, it would be important to investigate the extent to which non-violent actions, especially sanctions, adhere to the proportionality principle jus ad vim seeks to preserve. 3. Prominent examples include: Bellamy 2005; Rengger 2005; Orend 2006; Johnson 2006a, 2006b; Heinze and Steele 2008; Bellamy 2009; Strawser 2010. See also the articles in a special issue of the Journal of Military Ethics, 10: 3 (September 2011) entitled ‘The Just War Tradition and the Crisis of Jus ad bellum’. 4. For example, see Shaw 2002: 343–59, 354–5; Burke 2004: 330. 5. We thank an anonymous reviewer for suggesting this term.

References Alston, Philip (2010), ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions’, Geneva: United Nations Human Rights Council, A/HRC/14/24/Add.6, (last accessed 3 August 2018). Anderson, Kenneth (2012), ‘Efficiency in Bello and ad Bellum: Making the Use of Force Too Easy?’, in Claire Finkelstein and Jens David

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Force Short of War in Modern Conflict Ohlin (eds), Targeted Killings: Law and Morality in an Asymmetric World, Oxford: Oxford University Press, pp. 374–402. Bellamy, Alex J. (2005), ‘Is the War on Terror Just?’, International Relations, 19: 3, 275–96. Bellamy, Alex J. (2009), ‘When is it Right to Fight? International Law and jus ad bellum’, Journal of Military Ethics, 8: 3, 231–55. Benard, Alexander (2004), ‘Lessons from Iraq and Bosnia on the Theory and Practice of No-Fly Zones’, Journal of Strategic Studies, 27: 3, 454–78. Bergen, Peter and Katherine Tiedemann (2010), ‘Year of the Drone’, Washington, DC: New America Foundation, (last accessed 1 October 2011). Bergen, Peter and Megan Braun (2012), ‘Drone is Obama’s Weapon of Choice’, CNN, 25 September, (last accessed 3 August 2018). Braun, Megan (2012), ‘The Obama Doctrine: Drones and Just Wars’, Foreign Policy, 25 September, (last accessed 3 August 2018). Brennan, John (2012), ‘The Ethics and Efficacy of the President’s Counterterrorism Strategy’, Washington, DC: Woodrow Wilson International Center for Scholars, 30 April, (last accessed 1 July 2013). Brown, Davis (2011), ‘Proportionality in Modern Just War Theory: A Tort Based Approach’, Journal of Military Ethics, 10: 3, 213–29. Brunstetter, Daniel R. (2012), ‘Can We Wage a Just Drone War?’, The Atlantic, 19 July, (last accessed 1 July 2013). Brunstetter, Daniel R. and Megan Braun (2011), ‘The Implications of Drones on the Just War Tradition’, Ethics & International Affairs, 25: 3, 337–58. Burke, Anthony (2004) ‘Just War or Ethical Peace? Moral Discourses of Strategic Violence after 9/11’, International Affairs, 80: 2, 329–53. CNN (2008), ‘Transcript of Thursday’s Democratic presidential debate’, CNN, 31 January, (last accessed 1 October 2011). Coady, C. A. J. (2008), Morality and Political Violence, Cambridge: Cambridge University Press. Harbour, Frances V. (2011), ‘Reasonable Probability of Success as a Moral Criterion in the Western Just War Tradition’, Journal of Military Ethics, 10: 3, 230–41.

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From Jus ad bellum to Jus ad vim Heinze, Eric A. (2011), ‘The Evolution of International Law in Light of the “Global War on Terror”’, Review of International Studies, 37: 3, 1069–94. Heinze Eric A. and Brent J. Steele (eds) (2008), Ethics, Authority and War: Non-State Actors and the Just War Tradition, New York: Palgrave Macmillan. Hurka, Thomas (2005), ‘Proportionality in the Morality of War’, Philosophy and Public Affairs, 33: 1, 34–66. Johnson, James Turner (2006a), ‘The Just War Idea: The State of the Question’, Social Philosophy and Policy, 23: 1, 167–95. Johnson, James Turner (2006b), ‘Humanitarian Intervention after Iraq: Just War and International Law Perspectives’, Journal of Military Ethics, 5: 2, 114–27. Kreps Sarah and John Kaag (2012), ‘The Use of Unmanned Aerial Vehicles in Contemporary Conflict: A Legal and Ethical Analysis’, Polity, 44: 2, 260–85. O’Connell, Mary Ellen, Judith Gardam, Constantine Antonopoulos, Masahiko Asada, Jutta Brunnée, James Gathii, Christine Gray, Wolff Heintschel Von Heinegg, Noam Lubell, Wladyslaw Czaplinski, Elzbieta Mikos-Skuza, Koichi Morikawa, Josef Mrazek, Eric Myjer, Georg Nolte, Inger Osterdahl, R. K. P. Shankardass, Sir Michael C. Wood and Nikolaos Tsagourias (2012), ‘The ILA Use of Force Committee’s Final Report on the Definition of Armed Conflict in International Law’, in Mary Ellen O’Connell (ed.), What is War? An Investigation in the Wake of 9/11, Leiden: Martinus Nijhoff, pp. 319–67. Orend, Brian (2006), The Morality of War, Peterborough: Broadview Press. Pattison, James (2011), ‘The Ethics of Humanitarian Intervention in Libya’, Ethics & International Affairs, 25: 3, 1–7. Rengger, Nicholas (2005), ‘The Judgment of War: On the Idea of Legitimate Force in World Politics’, Review of International Studies, 31: 1, 143–61. Shane, Scott (2012), ‘Election Spurred a Move to Codify US Drone Policy’, The New York Times, 24 November, (last accessed 3 August 2018). Shaw, Martin (2002), ‘Risk-Transfer Militarism, Small Massacres and the Historical Legitimacy of War’, International Relations, 16: 3, 343–59. Strawser, Bradley Jay (2010), ‘Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles’, Journal of Military Ethics, 9: 4, 342–68.

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Force Short of War in Modern Conflict The Economist (2012), ‘Death from the Skies’, The Economist, 15 September, (last accessed 3 August 2018). United States Congress House Subcommittee on National Security and Foreign Affairs (2010), ‘Rise of the Drones: Unmanned Systems and the Future of War: Hearings on H.R.’, 23 March, 111th Cong. 1st sess., Washington, DC (testimony by Mr. Kenneth Anderson, Professor, Washington College of Law, American University). Walzer, Michael (2006a), Just and Unjust Wars: A Moral Argument with Historical Illustrations, New York: Basic Books, 4th edn. Walzer, Michael (2006b), ‘Regime Change and Just War’, Dissent, 53: 3, 103–8. Walzer, Michael (2007) ‘On Fighting Terrorism Justly’, International Relations, 21: 4, 480–4. Williams, John (2008), ‘Space, Scale and Just War: Meeting the Challenge of Humanitarian Intervention and Trans-National Terrorism’, Review of International Studies, 34: 4, 581–600. Wittes, Benjamin (2008), Law and the Long War: The Future of Justice in the Age of Terror, New York: The Penguin Press. Zenko, Micah (2010), ‘Between Threats and War’, Council on Foreign Relations, September, (last accessed 3 August 2018).

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6

A Framework for an Ethics of Jus ad vim in the Context of Human Rights

Christopher Ketcham

Introduction Traditional non-combative methods of force short of wars such as sanctions, embargoes and trade and travel restrictions have generally not proven to be effective in improving human rights records. There are many reasons for this as we will discover. As a class, these exclusionary methods are punitive but do not also provide a rehabilitative process for those states that are being punished for poor human rights records. What many see as effective are the inclusionary processes called truth commissions, but these are generally reserved for states that have already made determined efforts to change laws, governance and other processes to improve human rights for citizens.1 Prosecutions have also been used to some positive effect after the fact (Kim and Sikkink 2010; Landsman 1996). If exclusionary methods have not been effective in improving human rights in existing regimes, would inclusionary methods fare any better? It is this question that I will ask and begin the dialogue towards finding answers in this chapter. By inclusionary methods I mean those that encourage people to become part of something that promotes reasonable human rights practices. I will be offering John Rawls’s Society of Peoples to introduce the dialogue concerning inclusionary practices. The Society of Peoples is an association of decent peoples that demonstrate human rights practices that meet minimum requirements for membership. While being a decent people is a requirement, non-belligerency 103

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to other decent peoples is also necessary. If both conditions are met, then the peoples are eligible for membership. Society members agree not to sanction each other or to be belligerent towards each other. A derived benefit from membership is economic, meaning that trade between members will likely be more favourable because of the lack of sanctions and belligerency. Some will doubt the logic that inclusionary practices are a form of force. Certainly, as I define them they are short of war. One of the difficulties in distinguishing today between jus in bello and jus ad vim is the reduction of scope of interventions against state and non-state actors. The world has entered an epoch where conflicts are generally regional, internal or ideological, as is most terrorism. Smaller-scale actions have replaced large-scale armies facing each other. Drones, targeted air strikes, or special forces insertions have reduced the scope of involvement in many conflicts. Territories where force is conducted to justify jus ad vim are smaller and civilian casualties are better controlled when smart bombs, special forces or drones are used against targeted groups and individuals. Daniel Brunstetter and Megan Braun describe one of the human rights issues associated with terrorism jus in bello actions: The problem is that while the struggle against terrorism is couched in terms of protecting human rights, the human rights of non-combatants may be sacrificed as the increased capacity for governments to satisfy the jus in bello principles of proportionality and discrimination may tempt these same governments into using force more frequently than necessary. (Brunstetter and Braun 2013: 92)

This chapter will provide no solution to the dilemmas of terrorism or other regional conflicts. Rather this chapter will consider efforts of jus ad vim to prevent and avoid conflict in the first place. I agree with Brunstetter and Braun that, We, on the contrary, argue that jus ad vim should not be conceived of as part of the actions leading up to war, but rather should serve as an alternative set of options to the large quantum of force associated with war. (Brunstetter and Braun 2013: 97)

I suggest that part of an alternative set of options underlying the jus ad vim idea is the concept of avoidance and prevention of 104

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conflict as the first part of an ethics of jus ad vim. Brunstetter and Braun are correct when they say, ‘Consequently, jus ad vim must be seen as morally distinct from the jus ad bellum last resort process’ (Brunstetter and Braun 2013: 97). The moral distinction begins with a recognition that the risk of jus ad bellum is a critical human rights risk. Avoiding or preventing such a risk should be the first priority of such a moral construct. As Brunstetter and Braun suggest, ‘Some attempt at nonviolent diplomatic measures must be tried before resorting to force, even if the limited levels of violence of jus ad vim mean that this requirement is less exacting than in the case of war’ (Brunstetter and Braun 2013: 97). The Society of Peoples is just such an attempt at providing a process for engaging nations to provide for their people in a way that preserves their basic human rights. There are no guarantees, however. The Society of Peoples does not mitigate the problem of conflict and the greater use of force that jus ad vim requires when prevention is no longer possible. Rather, the Society of Peoples is part of the ethical process of jus ad vim that begins with efforts to avoid conflict. An ethics that begins with force in the form of violence, whether combative or economic coercion, begins in the wrong place. Therefore, I think that Brunstetter and Braun do not have the emphasis quite right when they say, ‘Right intention must therefore be directed toward upholding the rights of the Other. In this sense, right intention for jus ad vim means quelling a specific threat, while causing the least amount of damage possible by protecting civilians’ (Brunstetter and Braun 2013: 100). Right intention begins with upholding the rights of others. It is only after these efforts have failed that the second phase of jus ad vim, more forceful action, can be directed towards regaining or preserving threatened human rights. Brunstetter and Braun then suggest, ‘Jus ad vim, then, must be anchored in international law’ (Brunstetter and Braun 2013: 101). In this I agree. In the first part of this chapter, I will review studies of sanctions and smart sanctions, Rawls’s Law of Peoples and then introduce a Society of Peoples. In the second part of this chapter I will summarise Levinas’s concept of responsibility and explore how it is supervened by the Society of Peoples. In addition, I will discuss truth commissions as a way of re-establishing responsibility from societies emerging from a period where human rights have been repressed. The two ideas – society of peoples and responsibility – together I believe will 105

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make for a more robust concept of an ethics of force short of war in the context of human rights. In both sections, the emphasis is on the avoidance and preventive first step of jus ad vim.

Part I: Society of peoples Sanctions Use Sanctions were first imposed by the United Nations (UN) in 1963 on the apartheid regime of South Africa (Security Council Report 2013: 2). In the early 1990s, rather than continue the use the broader comprehensive sanction strategies, the UN Sanctions Committees began using targeted strategies for these identified purposes: conflict resolution, non-proliferation, counterterrorism, democratisation and protection of civilians. The categories of sanctions in use today are: suspend diplomatic relations, travel ban, asset freeze, arms embargo and commodity interdiction. In 2013, at the UN there were no countries with which diplomatic relations had been suspended. Sanctions can target individuals and countries or groups like the ISIS. Of the thirteen ongoing Security Council sanctions that the UN Security Council documented in 2013, twelve were for travel bans, twelve for asset freezes, eleven for arms embargoes and three for commodity interdiction. The most common combination for these eleven countries and two groups (al-Qaeda and Taliban) were: travel ban, asset freeze and arms embargo (Security Council Report 2013: 10). Of sixteen criteria used to identify sanctionable activities of people or groups, violation of human rights is just one. In September 2015 the UN Security Sanctions Committee reported there were sanctions on 618 individuals and 421 entities and other groups, authorised by sanctions committees in the institution. The literature on whether sanctions work or not is mixed, with a general perception that sanctions have not been very effective in achieving desired results associated with improving human rights and reducing oppression.

Sanctions Results In 2009 Dursun Peksen conducted a time-series and cross-national study of sanctions between 1981 and 2000. He found that the use of comprehensive sanctions adversely affected human rights 106

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in target groups, but selective sanctions such as what the UN is using today had less of an adverse effect. Peksen explained that economic sanctions were generally counterproductive and sanctions imposed by multinational groups like the UN or European Union (EU) had a greater adverse impact than those imposed unilaterally, such as by the US on another country (Peksen 2009: 59). Other studies by (Kaempfer and Lowenberg 1999) and (Drezner 2000) found similar results for multinational and unilateral sanctions. However, Drezner noted that a strong opposition group in the sanctioned country, whether unilateral or multinational, can make dissent groups more effective. David Lektzian and Mark Souva found sanctions against democratic leaders to be more effective than against authoritarian leaders (Lektzian and Souva 2007: 848). Nikolai Marinov said that sanctions did have some effect on leadership change if the country had a working political process (Marinov 2005: 564). Daleh Dashti-Gibson et al. found that economic sanctions destabilise countries but at the same time generally don’t incentivise leadership to change practices (DashtiGibson et al. 1997: 617). Peksen explained that economic sanctions can make conditions worse for the general population because the oppressive leadership maintain their lifestyles at the expense of the population and if unrest develops leaders simply become even more repressive (Peksen 2009: 61–2). Reed M. Wood found similar evidence of increased repression after sanctions (Wood 2008: 509). However, Lektzian and Souva thought that sanctions focused directly on leadership might have a better chance of success, such as travel restrictions and asset seizures (Lektzian and Souva 2007: 867). Peksen concluded that economic sanctions generally are not effective in improving human rights in ‘targeted’ groups and quite often lead to ‘deteriorations’ in human rights (Peksen 2009: 74). In a 2011 study, Peksen and Drury found that sanctions actually gave countries incentives to creatively deploy ever greater political repression. Susan Hannah Allen offered that the political costs of sanctions towards autocratic regimes must be very high for the international body because they likely will not have the same political cost to the autocratic regime (Allen 2008: 916). In other words, sanctions must be high stakes for the international community, meaning they have a high degree of importance because consequences are high. Activities by an engaged international 107

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community can include strong enforcement measures, increased diplomatic efforts, increased isolation of the sanctioned state and heightened rhetoric directed at not only the leaders to change but to the citizens to make change happen. Peter Andreas pointed out that there has not been enough study on the effects of sanctions on other countries in the region of the country being sanctioned (Andreas 2005: 357). Saqib Jafarey and Sajal Lahiri noted other unintended consequences. For example, sanctions that reduce wages to children to counteract child labour abuses can actually cause the families in affected countries to increase, not decrease, child working hours (Jafarey and Lahiri 2002: 154). Unintended consequences have long worried diplomats. Peksen explained that Woodrow Wilson complained that sanctions could have ‘deadly’ consequences to the sanctioned population (Peksen 2011: 248). These studies in general suggest that there needs to be some form of political process in the country where an oppositional group can operate and engage the public towards change that will end sanctions. Sanctions may not be effective against a brutal dictator of a police state and may lead to increased human rights violations and other oppressive acts. Sanctions must also be of high importance to the sanctioning body and include even higher degrees of political cost internationally when the sanctions involve autocratic regimes. Comprehensive sanctions schemes, it seems, often have generated unintended consequences and have generally not achieved desired results. Can smart sanctions, sanctions targeted like an antibiotic to a specific disease, produce different outcomes without the collateral damage?

Smart Sanctions UN Secretary, Boutros Galhi said in 1995 that the sanction is a ‘blunt instrument’ (Weiss 1999: 499). Arne Tostensen and Beate Bull explained that the purpose of so-called smart sanctions is to impact the perpetrators of the problem as much as possible without otherwise hurting innocent persons (Tostensen and Bull 2002: 373–4). However, even they conclude, after an extensive review of the literature on sanctions and the smart sanction idea, that it is not likely that sanctioning bodies will be able to produce smart sanctions that could be any more effective than their blunt instrument cousins (Tostensen and Bull 2002: 402–3). 108

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Ang and Peksen developed a model that shows that the greater the importance of the issue to be sanction is to the sanctioner, the better the chance a sanction has of working. This implies that if we issue sanctions at the drop of a hat without a lot of intellectual, emotional and political cost to government and in the minds of the people, then such perfunctory sanctions are probably going to be much less effective than the ones we truly and actively believe are to resolve egregious conditions and require urgent and immediate change (Ang and Peksen 2007). We as a world have become more enamoured with sanctions. Before 1990 the UN used sanctions twice. Between 1993 and 1996 the US used sanctions on thirty-five countries (Haas 1997: 74). In the same time period the UN used sanctions twelve times (Tostensen and Bull 2002: 373). The next question we must ask is whether human rights treaties have done any better.

International Human Rights Treaties Human rights treaties define the rights that jus ad vim first will support and defend through suitable force where necessary. Since the Second World War, the UN and other bodies have produced many human rights treaties with various definitions of human rights. Wade M. Cole found that there is evidence of the use of monitoring and enforcement in the improvement of human rights because of treaties (Cole 2012: 1159). He also found that there is evidence that individual complaint procedures have a positive impact on the improvement of human rights in countries that agree to monitoring and enforcement (Cole 2012: 1159, 1163). He concluded that not all human rights treaties are alike in their uptake by countries or methods of enforcement. However, he did not agree that these treaties are all just ceremonious window dressing with limited effect, but there can be conditions where the treaties benefit human rights practices (Cole 2012: 1165). Emile M. Hafner-Burton and Kiyoteru Tsutsui noted that treaty legitimacy grows with the number of signers. They suggest that those who have not yet signed begin to look roguish. Yet they worried that the later signers, looking to avoid the spotlight of deviancy, may just sign the treaty, even if they will not or do not have the capability to comply with enforcement or monitoring provisions (Hafner-Burton and Tsutsui 2005: 1383). Interestingly they found some evidence that countries that sign many human rights treaties are more likely to have more repressive 109

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regimes than those who sign few human rights treaties (HafnerBurton and Tsutsui 2005: 1405). Human rights proliferation was also a great concern for John Rawls because he wanted his Society of Peoples to be more inclusive than exclusive. Therefore, as we will see, he limited his list of human rights for a society to be called decent to just a few. Some say too few.

The Law of Peoples John Rawls said that his Law of Peoples is derived from the laws that all people have in common. Those who follow the ‘ideals and principles’ of the Law of Peoples make up the Society of Peoples (Rawls 1999: 3). Rawls derived his Law of Peoples from his concept of ‘justice as fairness’. Simply stated his idea of fairness begins in an original position: when ‘principles of justice are chosen behind a veil of ignorance’ (Rawls 1999a, 1999b: 11). Meaning that nobody knows the economic, social or racial status of people who choose the principles of justice. Nobody has any advantage over another. He saw two fundamental principles of justice. First, everyone has a claim to the same basic liberties. Note that this does not say everyone must be equal in every economic or social sense. Rather they have a claim to these liberties; whether or not they capitalise on them is up to the individual. Second, there are bound to be social and economic inequalities. However, there must be equality of opportunity and that inequalities must be, ‘to the greatest benefit of the least-advantaged members of society’ (Rawls 2001: 42–3). He called this the ‘difference principle’. Simply stated, one compares one scheme to another to see what happens to the least advantaged. Whatever scheme benefits the least advantaged more should be chosen (Rawls 2001: 59–60). Many have called Rawls’s approach simplistic; Rawls himself called it a ‘realistic utopia’ (Rawls 1993). Realistic in the sense that the approach attempts to answer what are the limits of practicality considering social and political issues that we face? Utopian, in that they apply to all. Rawls set the bar low, but high enough to provide peoples with a minimum set of human rights that will not unduly conflict with religious, gender, or cultural politics and issues. At the same time, decent peoples who observe these basic human rights must also do so within his two principles of justice – equal opportunity and the 110

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difference principle. Rawls did not require more than a minimum of minimal human rights, but he did provide certain caveats: the peoples may favour one religion over another but not otherwise discriminate against the other religions; certain cultural practices may be favoured, but those who do not practice these will not be persecuted for not practicing them; and gender inequality is not prohibited if basic rights are being observed for all genders. Rawls’s basic human rights are these: life, ‘liberty’, ‘sufficient liberty of consciousness’, ‘personal property’ and equality (Rawls 1999: 65). These do require some elaboration. Life includes ‘freedom from slavery’ and ‘occupation’ (Rawls 1999: 65). Liberty of consciousness means people be given the freedom to think, including the beliefs of their religion. Personal property is a fundamental right but not real property. Equality means simply that if two different people bring similar cases before a judge they will be treated similarly regardless of gender, race, religion, culture or creed or any other factor – we are all humans. Why did Rawls provide such a limited palette of human rights? I believe he wanted to encourage inclusivity. By encouraging inclusivity, he also did not favour democracy or other liberal forms of government over, say, a decent but hierarchical form of government. In exploring his idea for a Society of Peoples, Rawls set about to classify different forms of government. He developed five categories. The first are decent liberal societies, generally democratic. Rawls claimed, without citing evidence, that ‘constitutional democratic societies’ do not go to war with each other (Rawls 1999: 8). If this is true then liberal democratic societies fulfil at least one requirement of the Society of Peoples and that is non-belligerence, at least to other liberal democratic societies. Just liberal democratic societies are by definition and actual performance decent. However, Rawls did not hold that these should be the only members of the Society of Peoples. Toleration of non-liberal societies – to a point – is central to his thinking. A second type of society that he found tolerable is the decent hierarchical society. The decent hierarchical society honours human rights but also provides a meaningful role for citizens in making political decisions. A strong monarchy that honours human rights and gives citizens some say in the political process (what the minimum is – is difficult to define) would be considered a decent hierarchical society if it also 111

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supported the basic human rights that Rawls claimed are fundamental to decent societies. Such a society might also hold all real property in trust for the monarchy and otherwise dictate a state sponsored religion and cultural norms (subject to his caveat about letting others practice their religion). However, the sister to the decent hierarchical society, the benevolent autocracy, is not decent because it provides no meaningful political process or role for the people even though it promotes some basic human rights. There are two other societies that Rawls found to be other than decent. The first is the outlaw state which may be any combination of belligerent, autocratic and with few human rights. The second is the burdened society where food, work, natural resources or other necessities for subsistence are in such short supply that the society is in danger of collapse. Liberal democratic societies and decent hierarchical societies by Rawls’s definition can become members of the Society of Peoples. Benevolent autocracies may be courted for membership but they must gain meaningful political processes for citizens in order to be granted membership. Outlaw states are those who foment conflict and may or may not encourage other states to wage war or impose strong sanctions programmes against the outlaw state, including second order jus ad vim activities such as fighting militia or other internal groups. Burdened societies require international help and assistance to cure issues that produce undue burdens on the people. What Rawls proposed is tolerance for all decent societies and tolerance between decent societies. I will extend his argument by proposing a more formal association for the Society of Peoples.

The Society of Peoples as an Association Associations support members that have some common interests. I suggest that the Society of Peoples be formed as an association to promote freer trade among members. Society members would agree that there will be no war, belligerence or sanctions between the members for human rights issues. The association would only have rules to admit and renew members and to provide some form of discipline (for example: censure) and/or rehabilitation to mitigate the non-renewal of membership for cause. The charter of the association would define what constitutes violation, any sort of administrative remedies and what termination for cause means. The association may also provide for provisional membership for 112

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those societies that have yet to fully demonstrate they are decent, with specific criteria for withdrawal of provisional membership either into full membership or not. The association remains in the avoidance and prevention phase of jus ad vim and does not enter into the enforcement phase of jus ad vim. As such, it retains its inclusionary focus without any threat of force beyond the denial or non-renewal of membership. One difficulty with an association founded upon an agreement to maintain minimal human rights and non-belligerence towards other members is to what extent that regulation of member trade requirements can improve trade. I suggest that the association should consider Rawls’s process of justice. First, that justice must be applied equally to all. Second, that decisions the society makes in association with minimum trade requirements inure to the least advantaged members. I do see country-to-country trade treaties, limited tariffs and other common trade practices continuing if there is a recognition of deference to the least advantaged members – the difference principle – and that these practices do not adversely impact the association’s agreed upon human rights. I do think that there is a second benefit beyond mutual economic advantages. That is, the capability of the association to offer its best practices to both decent and other than decent societies to encourage their membership. This could include providing significant assistance to burdened societies in ways that will help them become unburdened and choose a decent form of governance. What I am proposing is aid in the form of education and other services that will assist the country to become unburdened. Based upon past efforts and failures, this is a tall order, especially if there is limited infrastructure, industry or education, malnutrition and lack of health care, strife or few natural resources. Change in burdened societies often brings to fore those who would capitalise on emerging wealth at the expense of the people. Burdened states face complex and fundamental problems that preclude more advanced dialogue until basic human needs are fulfilled and corruption and internal strife are at least mitigated. The prospects for outlaw societies for rehabilitation are limited at best. Diplomacy, sanctions, limited military action and war may be the prospects that the world community will have to look forward to until rogue elements are eliminated either through external force or internal activities. 113

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Where I see the most opportunity to increase membership in the Society of Peoples is with those benevolent autocracies where the people and the autocracy agree that changes can be made that benefit both and lead towards membership in the economic bloc that the association promotes. It is encouraging that we have seen these changes in many eastern European societies since the fall of the Berlin Wall. The Society of Peoples that I envision has no authority to sanction, wage war, or do anything other than to promulgate and maintain membership and the rules of conduct associated with membership approved by their charter and voted upon by the membership of equal peoples. Therefore, I suggest that the Society of Peoples is best established as an independent body that is not associated with or beholden to any other international body, including the UN. This will present some difficulties because the UN may sanction societies for human rights violations that are also members of the Society of Peoples. Whether or how this dilemma is resolved will be important to the success of a Society of Peoples. Since the UN has been sanctioning for more than just human rights violations, the segregation of rights from other sanctions may be possible. What the Society of Peoples will need to agree upon is what rights are human rights. Will they agree with just the few that Rawls proclaimed are fundamental and necessary, or will there be others? It is within the best interest a society founded upon inclusivity to limit the creep of human rights.

Arguments against and Problems with the Idea of a Society of Peoples Why do we need a Society of Peoples when there are innumerable human right agreements and a plethora of trade agreements now in the international community? Remember that Rawls desired the Society of Peoples to be a realistic utopia. He wanted first to establish the minimum requirements of justice for a society to be called decent. The bar is set at the minimum requirements for such a designation, not only to promote inclusivity, but also to show other than decent societies and their citizens that the designation of just and decent for them may not be that great a hurdle to overcome. I suggest that anything beyond these minimal requirements should be considered by the Society of Peoples to be aspirational but not 114

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required for the ‘decent’ designation. The danger with too many human rights is that they become less meaningful the fewer the societies that can achieve them. The lack of gender and religious equality in Rawls’s list of human rights has earned a lot of criticism. One of the problems with decreeing gender equality in all things is that this challenges some beliefs of major religions. Rawls’s wanted to avoid such challenges and therefore did not include gender rights in his list of human rights. A question that an established Society of Peoples will need to answer is what results has the society achieved? Where have the peoples in the aggregate improved their economic condition and, in general, where have their human rights been at least maintained and . . . where have they deteriorated? Complacency of members could be a significant hurdle to overcome, especially if the process to revoke membership is arduous and long. Strong associations balance membership with reputation, making sure that the hurdle to achieve membership is realistic and that egregious actions of members are swiftly and equitably punished through public censure (not sanction), rehabilitation and/or loss of membership. Often such admonitions are in the form of public notices of membership withdrawal for cause. Rawls’s Law of Peoples does not contain the same human rights as the United Nations Universal Declaration of Human Rights (UDHR). Rawls was troubled by the UDHR that some rights seemed to require specific institutions he did not see as necessary for his Society of Peoples. He thought that he had captured the more important rights in his Law of Peoples (Rawls 1999: 80). Many have and will challenge Rawls on his selection of human rights. A Society of Peoples that aims at inclusion for its definition of decent societies will also struggle to find the appropriate balance between rights and difference in socio-cultural norms as it develops its charter. Rawls put peoples before individuals. He rejected all forms of cosmopolitanism, that is, the concern for individuals over that of peoples in international law and justice (Boucher 2007: 25–6). As such, I believe that the Society of Peoples is only part of the solution to improving human rights on a global basis. Problems of oppression, slavery, famine and other systemic ills associated with other than decent societies will not go away by the existence 115

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of a society alone. Entrenched autocracies like the Democratic People’s Republic of Korea remain closed societies so that information about the benefits of justice and decency are not made available to the people.

Part II: Turning to Levinas to discover justice for the individual Responsibility To complete the foundation of our ethics for the first part of jus ad vim, prevention and avoidance of conflict, we must consider what it is between persons that maintains an ethics of human rights in the decent societies that make up the association called the Society of Peoples. For that we turn to Emmanuel Levinas whose body of work puts responsibility to the other at the forefront of his ethical project. I suggest that Rawls’s important contribution to the idea of decent societies forming a Society of Peoples is not enough to improve human rights. No matter what type of government, society or association is formed, the individual person is never truly recognised for his/her uniqueness. It is a peril of organisation itself that individuals are shunted into categories and as such lose some of their individuality in the process. Levinas observed philosophy through a kind of veil of ignorance because we can never know the other because the other is infinitely different. Ethics begins in responsibility for and to the other. In effect, Levinas supervened the ethical society over the fundamental interpersonal ethical relationship (I and other) which according to Levinas begins in responsibility to and for the other in radical passivity, substitution and hospitality. However, he did not mean that personal responsibility was secondary to societal responsibility. He understood that in some respects that societal responsibility was a form of violence because it was more limiting than his concept of unlimited individual responsibility to the other. Even so, it is this supervening relationship that I believe is necessary to engage the inclusive effort to increasing the size and validity of a Society of Peoples.

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Levinas did not go much further to help us understand the dialogue required between interpersonal ethics and societal ethics. Rawls’s Kantian constructivism framed as justice as fairness must be juxtaposed against Levinas’s justice as conflict: the experience of moral ambiguity which he counters with an ethics of substitution for the other in the radical passivity and hospitality of responsibility.2 While I recognise the difficulty in supervening the Rawlsian approach to societal ethics as justice over a Levinasian approach of justice as conflict, I suggest that this supervenience is possible because the idea of an ethical society cannot be exactly the same as an ethics forged in the individual relationship. Towards this end, Jacques Derrida noted Levinas’s distinction between the ethical subject and the civic subject. Both Derrida and Levinas understood that justice is necessary in society so that the encounter with the other does not become violent, but at the same time the civic does violence to the unicity of the individual other. Derrida suggests the civic subject and the ethical subject have competing restraints and, as a result, they cannot be considered identical to each other (Derrida 1999: 32–3). I will agree with Levinas that in the interpersonal I am responsible for the other. I suggest that this basic concept is evident in most interpersonal relationships in the world today regardless of which society(s) one belongs. Even with the most egregious repressive regime supervening over the individual, the individual goes about his or her business – even if limited by society’s structure – being generally responsible to the other whenever this is possible. It is from this basic idea of the otherwise than being that Levinas derived from Plato as ‘the good’, that I believe that a process of inclusion at the interpersonal level can begin. The difficulty with engaging justice as responsibility between societies when some societies are just and others are not is where Levinas’s sense of justice as responsibility faces its greatest difficulties. The question of responsibility to the other and the third party becomes entangled in the extent to which responsibility can be rationally applied in the context of the use of force. Levinas’s radical passivity before the other does not envision a required reciprocity. In fact, a non-responsible response from the other is not out of the question. Levinas said that I am responsible for any persecutions that I will undergo. This is my responsibility and

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my responsibility alone. However, for all others of my peoples I demand justice (Levinas and Nemo 1985: 99). I demand justice for the other even if the other who is before me is being unjust to me. What I cannot accept is the lack of responsibility at the political level because it likely makes it difficult for me to be responsible to the other. I suggest that this is the opening for Rawls to bring forward his Law of Peoples. Just and decent societies do not persecute each other; they reciprocate with each other, meaning they accept Levinas’s idea of being responsible to the other. However, Rawls never went as far as Levinas in attaching the idea of a limitless responsibility to the other. Rawls’s ethics is fundamentally utilitarian, meaning that it is logical for people to want to seek a larger share of the goods of society. However, Rawls also said that in his original position, the participants are rational, but they have not already decided that the good is being a millionaire (Rawls 1999a, 1999b: 123). The rational person with a sense of the ethical would choose, according to Rawls, equality every time over any other form of societal construct. This requires, however, two considerations. First, that people can freely engage in society and with each other so that no class or other designation of citizen is given rights over others to seek a larger share of the goods of society just because they belong to that class or group. Second, that any inequality that results from abilities, skills, investments and so on cannot interfere with the basic requirements of goods or services for the weakest in society. The weakest may not have, either acutely or chronically, the wherewithal or skills, or resources to participate on an equal basis in the society.3 This does not mean that the weakest are not equal citizens, they are, but their capacity is somehow compromised. It would not be responsible to not consider the condition of the weakest in society and not act in a responsible manner towards these others as we would any other. Nor is there any judgment assessed against the weakest for the cause of their weakness. Helping some to become other than the weakest is (education, support, etc.), of course, is desirable. However, what constitutes the weakest in society is lacking in any definition in Rawls which could be construed as an empty promise. Returning to Levinas for guidance on responsibility as being unlimited posits the obverse question in that its promise 118

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is overfilled with responsibility that is also difficult to fathom. Even so, it is through responsibility that the weakest in society can be given deference.

The Intersection of Rawls and Levinas In Totality and Infinity Emmanuel Levinas explained that peace is an outgrowth of war (Levinas 1969: 22). As such, war and peace are inextricably intertwined. The idea of jus ad vim as enforcement of the peace through force attests to this intersection. If we begin jus ad vim with the idea of prevention and avoidance of conflict in the first place, we do not escape Levinas’s conjunction of the two, but we do provide for a space where human rights can be maintained by mitigating conflict. For there to be a condition where the Law of Peoples can engage its fundamental right of noninterference of liberal or decent peoples with other liberal or decent peoples we must find a different word from peace to describe such a condition. I believe that word is responsibility. Responsibility is the fundamental condition of the Society of Peoples and it asks a people to accept other peoples without being either dominant or inferior to other peoples (Rawls 1999: 121). If we can believe with Rawls that, since 1800, ‘firmly established liberal societies’ have not engaged with war with each other (Rawls 1999: 51) because they are so constituted to not have any reason to war with each other (Rawls 1999: 47), then there is an opportunity to describe a valid third state of responsible existence that does not involve either war or peace. While the other is important to me and responsibility to the other is important to maintain the decent societies that make up the Society of Peoples, there are times when responsibility breaks down. Decent societies can regress and other than decent societies can progress to where they can become members of the Society of Peoples. This project resides in the first part of the ethics of jus ad vim, prevention and avoidance. However, after war or conflict or the just use of force to repair torn human rights, it is important that there be a process to re-engage the people in responsibility to the other that may have been impaired by the conflict, oppression, or other suspensions or suppressions of human rights. One inclusive method of re-engaging responsibility to the other has been the use of truth commissions. Truth commissions are no panacea but they can be helpful in reintroducing the idea of responsibility to the other. 119

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Truth Commissions:The Intersection between Newly Formed Decent Societies and Responsibility The practice of responsibility to the other can be subverted by violence and oppression. When institutional responsibility for the other has been suspended and then much later restored, there needs to be a mechanism that brings responsibility again to the forefront. Nenad Dimitrijević suggested that truth commissions can restore what had gone missing during the period of responsibility’s suspension: ‘justice’ (Dimitrijević 2006: 368). War crimes trials and human rights violation prosecutions can serve as a force for deterrence and provide some measure of justice for the victims of perpetrators of human rights violations. However, in many countries that emerge from a period of chaos or oppression where responsibility has been suspended or seriously compromised, people need time to reconsider what it means to be responsible to the other. One such tool that has been used many times, beginning in the latter half of the twentieth century, is a truth commission. In fact, Geoff Dancy et al. pointed out that the demand and supply of truth commissions has become so pervasive they have become the norm when countries are in transition (Dancy et al. 2010: 45, 58). However, Deborah Posel pointed out that this has not been a tool used very often in Western societies in transition (Posel 2008: 119). David Scharf identified four purposes for truth commissions: record the history of the conflict, establish an approach to justice for victims, reconcile the nation or society and establish methodologies to insure that these abuses will not happen again (Scharf 1997: 379). While there have been many different forms of truth commissions (Posel 2008: 121; Wiebelhaus-Brahm 2009: 1) and different individual circumstances under which these commissions have been formed, I suggest that one major additional purpose for truth commissions is to reset the ethical bar: to teach people what it means to be responsible. For young people, it may be the first time they have seen others treating others without inflicting suffering. For those who had lived during less oppressive or violent times, it can produce a time of re-education into what it means to be responsible. Alfred Allan and Marietjie M. Allan said that these commissions can serve also as a form of therapy for post-traumatic stress that likely the population is experiencing in the aftermath of violence 120

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and oppression (Allan and Allan 2000: 459). This includes both the perpetrators and victims. However, Lisa LaPlante and Kimberly Susan Theidon cautioned that while testimony can have a cathartic effect, there must be a course of action that follows and in their judgment this involves a reasonable reparations programme (Laplante and Theidon 2007: 229, 250). A recent survey of East Timorese found that, ‘most participants strongly valued the symbolic nature of truth commissions as distinguished from their judicial or therapeutic nature’ (Mullet et al. 2008: 369). In South Africa, Robert Meister suggested that, ‘The crucial and controversial, assumption behind the TRC is that evil can be truly dead even though its beneficiaries continue to prosper from it’ (Meister 2012: 54, emphasis in original). The whites who were not involved in politics still benefitted from the apartheid regime and got to keep their ‘ill-gotten gains’ in the form of property and businesses even as the regime that gave them these has been discredited, hopefully never to rise again. This suggests that truth commissions alone are not enough. Considerably more study on the benefits of truth commissions, whether practical, psychological or symbolic, needs to be done.

Conclusion and recommendations This has been a project to discover an ethics of human rights in the context of jus ad vim. This study is in the first part of the proposed ethics for human rights: prevention and avoidance. It began with the idea that decent societies could become an inclusive association of the Society of Peoples to prevent and avoid conflict amongst members and encourage other than decent societies to perform the necessary tasks to become decent societies and benefit from what cooperation in the association can mean. While the Society of Peoples is important to the prevention and avoidance part of jus ad vim, the acts of persons in everyday situations are just as important to maintaining decent societies as the society itself. To explain responsibility, this study turned to Levinas and his fundamental ethics of responsibility to the other. Maintaining responsibility at the individual level is just as important to prevention and avoidance as the idea of decent societies themselves and their cooperating together in a Society of Peoples. While this study is in the first part of the ethics of jus ad vim, there are times where 121

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just use of force may be required to resolve conflicts that repress human rights. After the conflict that denigrates human rights is resolved, a truth commission can be deployed to help individuals within the battered society to re-engage responsible actions with each other and to repair some of the ruptures between persons and people that remain after the conflict is concluded. This study has used inclusionary practices as opposed to exclusionary practices to enable an ethics of human rights for the prevention and avoidance of the conflict phase of jus ad vim. Exclusionary practices like sanctions have not in general been effective in improving human rights practices in societies. The question raised by this chapter is whether inclusive practices, specifically Rawls’s Society of Peoples, as an association of decent peoples, would produce, in the long term, better results in improving human rights. The basis for using inclusionary practices is to emphasise avoidance and prevention of conflict which I have maintained is the fundamental and first requirement for jus ad vim. The Society of Peoples concept is inclusionary, meaning, you meet the requirements for membership, you can join. This means meeting the criteria for being a decent and non-belligerent society. Any association must benefit its members. Benefits can be tangible, such as economic or ecological.4 I have not delved into the specifics of benefits of such an association other than to say that economic benefits, sanction-free membership and non-belligerency are probably what we may see as initial benefits to member societies. The society has no police powers, only the power to approve or deny membership based upon its charter requirements. It will have a process for rehabilitation, leading to new membership or renewal for those societies that may fall short of charter requirements. One such rehabilitation process that could be deployed is a truth and reconciliation commission. The association will likely also develop best practices for obtaining entry into the Society and demonstrating required minimum human rights practices. Appealing directly to people may be an approach that a Society of Peoples can engage. If people are better off in the Society of Peoples and there is a way to reach the people (communication with the outside world is possible) then there may be a way of reaching people in societies that are other than decent where there may be an opportunity for change. I do not bill the Society of Peoples as 122

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a panacea. Rawls himself called it a realistic utopia. Whether the world embraces the idea of a Society of Peoples or not, what I am asking the world to consider is placing inclusionary practices before exclusionary practices.

Notes 1. See: Abusharaf 2006; Hayner 1994, 1996a, 1996b; Laplante and Theidon 2007; Rotberg 2000; Rotberg and Thompson 2000; Shaw 2005; Shea 2000. 2. Rawls’s Kantian constructivism first establishes the person as rational (think logically) with a sense of the ethical (original position) to work together to construct a common agreement from certain fundamental but conflictual concepts as freedom and equality. ‘Kantian constructivism hopes to invoke a conception of the person implicitly affirmed in that culture, or else one that would prove acceptable to citizens once it was properly presented and explained’ (Rawls 1980: 518). From this Rawls derives the two model-conceptions of a ‘well-ordered society’ and ‘moral person’. The well-ordered society is central to the Law of Peoples but is constructed from the agreement of moral persons. 3. I do, however, recognise that even the most just society will have groups that have been marginalised through no fault of their own. They may have all the skills, intelligence and desires but find it challenging to ascend the ladder of equality. 4. Meaning that one gains prestige from being a member.

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Force Short of War in Modern Conflict Rawls, John (1993), ‘The Law of Peoples’, Critical Inquiry, 20: 1, 36–68. Rawls, John (1999b), The Law of Peoples, Cambridge, MA: Harvard University Press. Rawls, John (2001), Justice as Fairness: A Restatement, Cambridge, MA: Harvard University Press. Rotberg, Robert I. (2000), ‘Truth Commissions and the Provision of Truth, Justice, and Reconciliation’, in Robert I. Rotbery and Dennis Thompson (eds), Truth V. Justice: The Morality of Truth Commissions, Princeton: Princeton University Press, pp. 3–21. Rotberg, Robert I. and Dennis Thompson (eds) (2000), Truth V. Justice: The Morality of Truth Commissions, Princeton: Princeton University Press. Scharf, Michael P. (1997), ‘The Case for a Permanent International Truth Commission’, Duke Journal of Comparative & International Law, 7, 375–410. Security Council Report (2013), Special Research Report: UN Sanctions, New York: United Nations. Shaw, Rosalind (2005), Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone, Washington, DC: United States Institute of Peace. Shea, Dorothy C. (2000), The South African Truth Commission: The Politics of Reconciliation, New York: United States Institute of Peace Press. Tostensen, Arne and Beate Bull (2002), ‘Are Smart Sanctions Feasible?’, World Politics, 54: 3, 373–403. Weiss, T. G. (1999), ‘Sanctions as a Foreign Policy Tool: Weighing Humanitarian Impulses’, Journal of Peace Research, 36: 5, 499–509. Wiebelhaus-Brahm, Eric (2009), ‘What is a Truth Commission and Why Does It Matter?’, Peace and Conflict Review, 3: 2, 1–14. Wood, Reed M. (2008), ‘“A Hand upon the Throat of the Nation”: Economic Sanctions and State Repression, 1976–2001’, International Studies Quarterly, 52: 3, 489–513.

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7

Jus ad vim: The Morality of Military and Police Use of Force in Armed Conflicts Short of War

Seumas Miller

Michael Walzer introduced the term jus ad vim – the just use of force short of war – in contrast with, or perhaps to complement, the well-established notion of the just war, jus ad bellum and its correlative notion, jus in bello (Walzer 2006). The intuitive idea is that there are circumstances in which military force needs to be used yet full-blown war can be avoided, and in these circumstances a different configuration of moral principles is required; hence the constitutive principles of jus ad vim will differ somewhat from the constitutive principles of jus ad bellum or, at least, the application of the same principles will differ given the difference in contexts (Braun and Brunstetter 2013). Moreover, these circumstances include not only ones in which states are to use force against other states, but also ones in which states are to use force against nonstate actors, such as terrorist groups, outside its own territory. The US use of drone strikes against terrorists in the disorderly jurisdiction of the Federally Administered Tribal Areas (FATA) in Pakistan is a case in point. Notice that the notion of force in play in discussions of jus ad vim is not simply a matter of degree, but also of kind. Targeted killing necessarily involves the actual use of lethal force but no-fly zones, for instance, might only involve the threatened use of lethal force and sanctions only the use of non-lethal coercive force. Notice also that there is no intention thus far in the literature to apply jus ad vim in relation to the use of military force (short 127

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of war) by a state against a non-state actor within the state’s territory; evidently, jus ad vim is not thought to be applicable in order to avoid, for instance, a revolutionary war. Moreover, jus ad vim is not thought to be applicable in contexts in which there is a need to de-escalate an existing war and other means by which to bring about the cessation of hostilities between the warring states, or for that matter between a state and a non-state actor, are unavailable. Examples of such contexts might include ones in which there is no prospect of peace as a result of diplomacy or as a consequence of one side winning a decisive military victory. However, conceptually at least, there does not seem to be any good reason not to apply the notion of the just use of military force short of war to incipient revolutions and insurgencies that might otherwise slide into full-blown war or to contexts in which the de-escalation of an existing full-blown war requires a gradual ratcheting down of the use of military force if peace is to be achieved. Moreover, it may well be the case in many of the contexts in which the use of force short of war is appropriate, notably in counter-terrorist operations outside the state’s territory, such as in the armed conflicts in Afghanistan, Syria and Iraq. The deescalation in question calls not only for a de-escalation in the use of military force but simultaneous recourse to the use of the police (including domestic police) and, in particular, to police use of both lethal and non-lethal coercive force. Here it is understood that, normatively speaking, military use of force is different in a number of important respects from police use of force. Specifically, in the case of the military, once they are engaged in war, recourse to lethal force against enemy combatants is typically a first resort.1 In the case of the police, recourse to restraining force, for example arrest, is the first resort and if that fails there is a resort to incapacitating force, for example the use of tasers. It is only if these two forms of force fail that there can be recourse to lethal force. In short, by contrast with the military, recourse to lethal force by the police is the last resort. As I have argued elsewhere, this crucial descriptive and normative difference between police and military use of force arises from the differences in the ultimate purposes of these two institutions (Miller 2016). Roughly speaking, military force is deployed in order to win wars and other armed conflicts, whereas police use of force is used in the service of law and order. However, as the series of terrorist attacks in 128

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Paris on a single night in 2015 by heavily armed terrorists serves to illustrate (BBC News 2015),2 there is sometimes a fine line between morally justified military and police use of lethal force. Moreover, the advent of heavily armed marauding terrorists operating even in well-ordered jurisdictions, such as Paris, may well result in heavily armed police units becoming more prevalent in domestic police services, at least in major urban centres. At any rate, my concern in this chapter is with the descriptive and normative interface between the use of military force and police use of force in disorderly jurisdictions; jurisdictions which are neither hot battlefields (so to speak) nor well-ordered jurisdictions. My concern is with both the normative and the descriptive since I do not believe that in this area these two dimensions are entirely separable. The focus on the interface is important since in the kinds of armed conflicts and incipient armed conflicts in question there are frequently, I suggest, turning points at which there is the use of both military force and force by the police – military force being deployed, among other reasons, to protect the police in, for instance, police counterinsurgency/counterterrorism operations. Moreover, this turning point can be characterised as one in which the priority is shifting from engaging in armed conflict to enforcing law and order (de-escalation from a state of war or other armed conflict) or, alternatively, from enforcing law and order to engaging in armed conflict short of war (escalation, but not necessarily to the point of war). I take it that the doctrine of jus ad vim in respect to the use of military force operates at or near this turning point in the kinds of armed conflicts in question. Moreover, this use of military force frequently operates in tandem with police operations and, therefore, there is, as it were, a division of labour between the military and the police in respect of the spectrum of force being deployed. Accordingly, in this chapter I undertake two main tasks. First, I compare and contrast police use of force and military use of force and in so doing construct what I will refer to as the law enforcement model (LEM) and the military combat model (MCM) (respectively) of the use of force. This requires normative accounts of the institutional roles of police officers and regular soldiers and, in particular, a normative theory of the two institutions of which these roles are, respectively, the key constitutive elements.3 According to my general account of social institutions (Miller 2010), any given 129

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institution serves some pre-existing particular moral purposes, for example to protect the moral rights of persons, and its role occupants are constrained by pre-existing moral principles, for example the principle of not killing innocent persons. Nevertheless, the institutional rights and duties of role occupants derivable from, at least in part, the purposes of the particular institution in question are in many cases also moral rights and duties and, in some of these cases, distinctive ones. So police officers have institutional (moral) rights and duties that are somewhat different from those of regular soldiers; and both police officers and regular soldiers have institutional (moral) rights and duties which are somewhat different from those of ordinary citizens. This theoretical standpoint evidently puts me at odds with both reductionist accounts of the use of lethal force in armed conflicts and collectivist conceptions.4 The former are committed to the view that moral principles constitutive of ordinary morality combined with the facts about specific contexts of armed conflict are sufficient to generate the moral rights, permissions and obligations with respect to the use of lethal force in play in those contexts. In short, institutional rights, permissions and obligations make no moral difference.5 The latter are committed to the view that collectives, for example polities, have moral rights, duties and permissions above and beyond those of the individual human beings who constitute them. As an individualist, albeit a relational individualist, I reject collectivism thus understood. My second task is to apply these models of the use of force to a number of non-standard, but by now all too familiar, contexts of armed conflict involving insurgents. I argue that neither model is entirely fit for purpose in these contexts. Accordingly, I suggest a number of adjustments to these models in their application in these contexts. The effect of this is to retain the use of LEM in the contexts for which it was designed and retain the use of MCM in the contexts for which it was designed; but, in addition, design and apply a hybrid model (or rather set of hybrid models) in those contexts for which neither LEM nor MCM is fit for purpose. In such contexts, I suggest, the notion of jus ad vim gets some purchase since they may well call for a ratcheting down of military force and a ratcheting up of police use of force. I note that my concern in this chapter is with questions of morality rather than legality; so the models in questions are normative in the moral sense. I also note that my focus is on the use of force by members of the security 130

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agencies (police and military) of contemporary liberal democratic states and that the three predominant kinds of force of interest here are lethal force, incapacitating force and restraining force used to arrest and imprison. Moreover, my assumption throughout is that the LEM is the default option. In saying that the LEM is the default option I mean not only that the LEM is the preferred option but that the MCM should be applied in the contexts in question only under the following general conditions: (1) the LEM cannot adequately contain serious and ongoing armed aggression; (2) the application of the MCM has a reasonable chance of being able adequately to contain this aggression; (3) the application of the MCM is proportionate to the aggression in terms of the likely loss of innocent civilian life, in particular; (4) the MCM is applied only to an extent (for example with respect to a specific theatre of war but not necessarily to all areas that have suffered, or might suffer, an armed attack) and over a period of time, that is necessary; and (5) all things considered, the application of the MCM will have good consequences in terms of security and better overall consequences (for example in terms of lives lost, freedoms curtailed, economic impact, institutional damage) than the available alternatives.

The institutional roles of police officers and regular soldiers Elsewhere (Miller and Blackler 2005), I have defined the police role in terms of: (1) the collective end of protecting the legally enshrined, justifiably enforceable, moral rights of citizens from violation by fellow citizens, including citizens who are also institutional actors, for example government officials – that is, the collective good of internal security; (2) by means of (in part) the use of coercive force (principally restraining force but also incapacitating and lethal force); and (3) a jointly held moral obligation on the part of all citizens to protect the moral rights of fellow citizens from their fellow citizens – that is, to provide the collective good of internal security. This latter jointly held moral obligation could be discharged by an all-citizen police service, but in contemporary liberal democracies it is discharged by establishing the institution of the police and its constitutive occupational role of police officer. 131

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The point to be stressed here is that the primary and overriding commitment of the police must be to ensure that the law is upheld, as opposed to ensuring that they comply with the directives of government. In this respect police have a quasi-judicial role (Miller and Blackler 2005) and, therefore, are somewhat different from civil servants and the military – the latter being essentially the instruments of the elected government. This point should not be confused with the requirement that all citizens and institutional role occupants, including police, comply with the law. What of the institutional role of regular soldiers (understood broadly so as to include sailors, airmen and so on) (Miller 2016)? The institutional role of regular soldier can be defined in terms of: (1) the collective end of protecting the moral rights of the members of the citizenry from violation by persons from external communities/nations – that is, the collective good of external security; (2) by means of the use of deadly force, or the threat thereof; and (3) a jointly held obligation on the part of all citizens to protect fellow citizens from external threats – that is, to provide the collective good of external security. This latter jointly held moral obligation could be discharged by a citizen-militia to which all citizens belong. However, in contemporary liberal democracies it is typically discharged by establishing standing professional armed forces (supplemented in wartime, if necessary, by an armed force of citizen conscripts). The first and perhaps most obvious difference between the police and the military uses of force is that the police defend citizens against one another, that is, their orientation is internal to the state, whereas citizen-soldiers defend the citizenry against threats external to the state, for example armed aggression by other nation-states. Moreover, the external threats in question are threats to the state per se, or at least to its vital interests, and as such are ultimately political threats posed by political entities, albeit typically the threat is a military one in the first instance. This picture is complicated by the existence of international terrorist groups such as al-Qaeda and the Islamic State of Iraq and Syria (ISIS). However, it is not fundamentally altered, or so I have argued in other places (Miller 2009). For insofar as terrorist groups have a substantial lethal capability and constitute a serious external threat requiring a military response, then they are 132

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simply a different kind of external political entity. On the other hand, insofar as terrorist groups constitute, as they often do, an internal threat, they are a matter for the police to deal with; this is terrorism as domestic crime. Naturally, an insurrection, whether orchestrated by terrorist groups or non-terrorist ones, can get to the point where a police response is no longer adequate. The liberal democratic state in question may need to move to a temporary and geographically limited state of emergency, as India has done frequently in the recent past. The second important relevant difference between the institutional role of the regular soldier and that of police officer also pertains to the nature of their institutional ends. Unlike the police the military do not exist to enforce the law, whether domestic or international law. Rather military forces are essentially instruments of governments in the service of the state’s interest in external security (as outlined above). Naturally, the military ought to comply with international law in their operations, just as police officers ought to comply with the domestic law in their law enforcement activities and, for that matter, citizens ought to comply with the domestic law in their day-to-day activities. However, from the fact that an agent ought to comply with a law or rule it does not follow that the agent has an institutional role as an enforcer of that law or rule. By virtue of their institutional role, police are law enforcers; not so regular soldiers. This point is not undermined by the fact that in recent times, as already mentioned, military forces have undertaken policing roles, for example as part of United Nations peacekeeping operations. For in undertaking such operations the military forces of nation-states are not undertaking their primary institutional role. Since military forces, unlike police forces, do not have as a primary and overriding role to enforce the law, there is not the same requirement for them to have a substantial degree of independence of government; they do not have the quasi-judicial character of police organisations and their officers. A third difference between the role of citizen-soldier and that of police officer pertains to their use of lethal force. In essence, soldiers use greater levels of lethal force and do so more frequently, with less legal and moral constraints. I discuss this issue in detail in the next section. 133

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Use of force in law enforcement versus military combat The paradigm case of the use of lethal force by a police officer in well-ordered, contemporary, liberal democratic states in peacetime is a one-off encounter between the officer and an armed offender in a context in which the offender is threatening someone’s life (either that of the officer or some third party) or has committed, or is about to commit, some other serious crime. The primary aim of the police officer is, or ought to be, to arrest but not kill the offender. Nevertheless, it is morally (and, typically, legally) permissible for the officer to use lethal force under the following conditions: (1) the threat is imminent; (2) it is necessary for the officer to use lethal force to protect the life of the police officer (or third party) or, at least, to prevent the commission of some other serious crime; (3) the use of lethal force by the officer is not disproportionate to the threat posed by the offender, for example the offender culpably poses a threat to life; and (4) the officer’s use of lethal force does not put the lives of innocent third parties at risk (Miller and Blackler 2005). Importantly, it is morally impermissible for the police officer to use lethal force merely to prevent an offender escaping – even an offender guilty of a serious felony – if the officer’s use of lethal force risks grievously harming an innocent bystander. Forced to choose between allowing an offender to escape and putting innocent bystanders at risk of serious harm, police officers must choose the former. Indeed, even if the lives (or other vital interests) of innocent bystanders are not at risk it may well be morally impermissible for an officer to use lethal force against an escaping offender. This would be so if, for example, the offender does not pose an immediate serious risk to anyone and could be arrested at a later time. These restrictions on police use of lethal force are due to two normative institutional features of policing. First, as noted above, the primary institutional purpose of police is to effect arrests rather than kill, or otherwise harm, offenders; indeed, police have a duty to use minimum coercive force in effecting arrests and, as far as possible, to protect offenders from harm. Second, a primary institutional role of police officers is to protect ordinary citizens from serious harm – and this typically 134

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trumps their other primary role of arresting offenders (Miller and Blackler 2005). This conception of the police use of force needs to become more complex, but is not fundamentally altered, to accommodate public order policing, for example riots. Public order policing strategies can usefully be divided into two broad groups, (1) pre-emptive or pro-active policing and (2) reactive policing. An example of preemptive or pro-active public order policing is that typically used in large, pre-organised, election rallies addressed by the leaders of political parties. Such occasions involve planned public order policing arrangements. Accordingly, they can and should involve appropriate pre-set logistical arrangements, clear lines of authority and communication, experienced supervisors and a cohort of welltrained police officers to execute the arrangements on the ground. Reactive public order policing is typically problematic in four respects: (1) police have little or no notice of impending events; (2) there is collective violence; (3) the capacity of the police to exercise control by means of non-violent strategies is much less than would otherwise be the case; and (4) the use of force by the police is, correspondingly, both far more likely and (potentially) more justified. Naturally, even in reactive policing of collective violence situations, coercive force needs to be used judiciously and in tandem with non-violent strategies. Moreover, the effectiveness of reactive policing strategies is heavily dependent on the skills, experience and leadership of the police involved. In some instances of reactive policing of collective violence, the violence is primarily directed at the police themselves, for example anti-government violence. In other instances the violence is primarily directed at another group within the community, for example religious violence. In all instances of reactive policing of collective violence a crucial factor is the attitude of the community being policed to the police. Are the police seen as an occupying force or as an impartial enforcer of the law and protector of the community from criminal elements? If the latter then there is the potential to mobilise the community to restrain those elements engaged in violence, whether that violence be directed primarily at the police or at some other group within the community. If the former, then the police face an ongoing uphill battle, especially when one considers their comparatively small numbers in the context of large-scale collective violence. 135

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Notwithstanding whether there is a breakdown in police/community relations or that the rioters/insurgents are otherwise intent on violence, the police response ought to be driven by the requirements to uphold the law/preserve the peace and protect the moral rights (including property rights) of the citizenry. Hence, the aim of the police is to disperse violent crowds, with the minimum use of force and in a discriminating manner. Here the use of tear gas can be effective. Although tear gas is not discriminating it is also not particularly injurious. Additional, more discriminating, methods are available to target specific individuals, such as ringleaders, or those engaged in violent acts, such as missile throwers. These methods include firing non-lethal rounds which incapacitate a target, for example plastic bullets. Let us now consider armed military conflicts. Armed military conflicts include civil wars, wars of liberation and non-conventional wars between state actors and terrorist groups. Moreover, the armed forces in question are collective entities. Note that in my view this does not imply that collective entities per se perform intentional actions; only the individual human occupants of the task-defined roles constitutive of such entities do that. However, these individual role occupants perform joint actions as well as individual ones. A joint action consists of individual actions directed to a shared, interdependent end or goal (collective end, in my parlance) (Miller 1992). Many complex joint actions involve large numbers of agents and take place over extended periods of time; military operations are a case in point. According to the traditional just war theory of jus in bello, conventional military conflict and, let us assume, armed conflicts in our somewhat wider sense, should be conducted according to the principles of military necessity, discrimination and proportionality. However, unlike in the case of law enforcement, these principles predominately apply at the collective level rather than merely at the individual level in military conflicts. Let me explain. At the collective level there is an ongoing war being fought by organisations; war is not simply fought at the level of any given single combatant’s discrete, self-contained lethal actions. This is, of course, not to deny that there is also an individual level, which is in part constitutive of the collective level.6 In the context of armed conflict between armed forces, each combatant in one’s own armed force is an organisational element of a 136

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standing joint lethal threat to the enemy and, likewise, each enemy combatant is an organisational element of a standing joint lethal threat to one’s own armed force. Consistent with my individualist analysis of joint action, joint lethal threats (standing or otherwise) are constituted by the potentially lethal actions of individual combatants and their leaders acting in concert, that is, jointly. Accordingly, any given single combatant involved in an ongoing armed conflict is confronting (jointly with his fellow combatants and leaders) a standing joint lethal threat in relation to which: (1) any single enemy combatant constitutes a threat element; and (2) any single, discrete lethal encounter with enemy combatants is simply a phase-element in the ongoing conflict. Crucially, unlike in the paradigm cases of the application of the principles of necessity and proportionality governing the use of lethal force by police officers, the principles of military necessity and proportionality apply not only in relation to immediate goals, but also to medium and long-term (military) collective ends, for example winning a battle, winning the war. Moreover, they apply differently. As we saw above, it is morally permissible for a police officer to use lethal force against an offender only if it strictly necessary in the circumstances and there is no other option available. Thus, police cannot justify an otherwise unjustifiable use of lethal force against an escaping (say) armed robber merely by recourse to some medium or long-term law enforcement goal to ‘win the war’ against armed robbers. This is not the case in war. For it is morally permissible, perhaps even morally obligatory, for a combatant to kill an enemy combatant, even if it is not strictly necessary to do so either to save his own life (or the life of a fellow combatant or civilian) or, indeed, to further the immediate, medium or long-term (military) collective ends of the armed force to which he belongs. Rather his killing an enemy combatant is necessary only in the sense that it is part of the rationally defensible means to achieve these collective ends. Accordingly, the principles of necessity and proportionality are far more permissive in military conflict than in law enforcement contexts. For example, the use of lethal force by a military combatant is not necessarily in defence of an imminent threat to that combatant, his fellow combatants in that encounter or, for that matter, any other individual person present at that time and place. Thus it is morally permissible in military conflict, but not in law 137

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enforcement, to use the tactic of ambush whereby enemy soldiers are attacked and killed without warning and notwithstanding the fact that they do not constitute an imminent threat to anyone at that time and place. In a theatre of war, lethal force against enemy combatants, if it serves a military purpose, can be, and typically is, the first resort, whereas, as we saw above, in law enforcement it is the last resort – the first resort being to arrest offenders. Let me conclude this section by briefly discussing the other key jus in bello principle, namely, the principle of discrimination. Roughly speaking, according to this principle combatants in a theatre of war should avoid intentionally killing innocent civilians. However, the unintentional, but foreseen, killing of innocent civilians might be morally (and legally) permissible if the military action occasioning these civilian deaths was militarily necessary and if the quantity of deaths in question was not disproportionately large, relative to the military benefits. Obviously, this principle of discrimination is far more permissive than any analogous principle in law enforcement. As we saw above, it is not morally permissible for police officers foreseeably to put the lives of innocent bystanders at substantial risk in order to effect the arrest of even serious offenders. Much less would it be morally permissible for police officers to act on judgments that a foreseen quantum of loss of innocent life as a side-effect of their use of lethal force against (say) armed robbers is justified in order to attain some medium or long-term law enforcement goal, such as to reduce the crime rate.

Hybridisation of MCM and LEM: Applications and adjustments LEM and MCM in Counterinsurgency Counterinsurgency frequently involves the use of military forces, since police forces alone are typically unable to contain the aggression of the armed forces of the insurgents. Consider in this connection the current insurgencies in Pakistan, Afghanistan, Iraq and Syria. Here, as elsewhere, there is a prior question with respect to the moral justification, supposing there to be one, for the insurgency. Some insurgencies, such as the African National Congress’s 138

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armed struggle against the apartheid regime in South Africa are, at least in principle, morally justified. Others, such as that of the forces of ISIS in Iraq and Syria, are not. Moreover, even if the purpose of the insurgency is a morally defensible one, its methods might not be. Some terrorist groups have morally defensible ends, for example the Mau struggle against the colonial rule of the British in Kenya, but terrorism as a method is pro tanto morally unacceptable since it involves the deliberate killing of innocent persons (Miller 2004). At any rate, my assumption in what follows is that the counterinsurgency operations in question ultimately serve a morally defensible purpose as, for example, the counterinsurgency operations of the security forces of the South African apartheid state did not. I take it that the ultimate aim of such counterinsurgency operations is the existence of a well-ordered polity operating under the rule of law. If this is so then the desired endpoint is the entrenchment of the LEM and the removal of the MCM in the internal affairs of the polity in question (see the first section above). The bringing into existence of this endpoint is only possible if: (1) the MCM is no longer required because the insurgents have been defeated, substantially degraded or have otherwise abandoned their operations; and (2) other cognate and functioning institutions are also in place, for example government, judiciary and correctional systems. I note that the transition from MCM to LEM might involve four distinct steps or stages: (1) theatre of war (MCM); (2) martial law; (3) state of emergency (under the operational control of the police rather than the military); and (4) well-ordered jurisdiction (LEM). Moreover, in a given conflict there might be a variety of zones that are not all at the same stage; some zones might be theatres of war, others might be under a state of emergency under the operational control of the police. Further, in stages (1)–(3) consideration might need to be given to non-standard, hybrid versions of the MCM and LEM. More of this below. This is not the place to describe this process beyond making the following points inferable from the first and second sections above. First, the LEM presupposes that the police have broad-based community support and cooperation; so ‘winning hearts and minds’ and avoiding loss of innocent civilians’ lives under the MCM is of paramount importance. Second, as we saw in the first section, the 139

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police role and the military combat role are fundamentally different and, therefore, it is highly unlikely that an ultimately successful transition out of internecine war into a well-ordered polity would be facilitated by transmogrifying police officers into ‘little soldiers’ (Bayley and Perito 2010), whatever the short-term attractions of that policy might be. Third, a key military combat role in addition to defeating or substantially degrading the armed forces of the insurgents is to protect the police, to enable them to conduct their law enforcement role. Fourth, in this transition period the nature of the military/police governance arrangements in respect of operational command and control is critical. For example, are the police under the operational control of the military commander or is the military force under the operational control of the police chief? Presumably, in some areas (for example theatres of war or areas under martial law), the former is applicable whereas in other areas (for example relatively well-ordered civilian areas or areas under a state of emergency [other than martial law]), the latter is applicable. Moreover, if the transition is to be successful then at some point a process in which the former give way to the latter (and in which, ultimately, the latter gives way to well-ordered jurisdictions), needs to get under way. Fifth, the specific strategies and tactics, including the rules of engagement (ROE), of the MCM needs to be closed looked at, especially in the context of the first point (above) made in this bracket of points and in the light of our concern with jus ad vim. For example, a ROE that only allows combatants to fire if fired upon might be preferable to a ROE that allows combatants to ‘shoot on sight’. Sixth, the specific strategies and tactics of the police need to be closely looked at, especially in the context of a state of emergency in which the police have operational control. In these circumstances, the police may need increased powers for a limited period and within the bounded geographical area of the state of emergency, with a corresponding temporary reduction in civil liberties. The powers in question might include additional powers to use lethal force to confront and ‘neutralise’, rather than merely contain, armed marauders; powers of preventative detention (as opposed to indefinite detention – see below); and enhanced powers to stop and search and to interrogate (suspension of right to silence). In short, in the transition from the MCM to the LEM there may need to be intermediate stages in which the MCM is ‘softened’ and 140

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the LEM is ‘hardened’ giving rise to hybrid models which are neither quite MCM nor LEM. Importantly, for our purposes in this chapter, recourse is being had to the use of force short of war. In the case of softened MCM, this is the use of military force short of war; the military are using an extent and degree of force short of what they paradigmatically deploy in wartime. In the case of hardened LEM, police are typically using an extent and degree force beyond what they paradigmatically deploy in well-ordered jurisdictions. It is in this context that I now want to consider two controversial practices, namely, targeted killing and preventative detention, beginning with the former (Miller 2005).

Targeted Killing of Terrorists The focus of this section is on targeted killing as a tactic in counterterrorist operations in particular – as opposed to counterinsurgency more generally. I note that the great virtue of this tactic, according to its proponents, is that it focuses on so-called ‘high value’ targets and simultaneously avoids killing innocent civilians. Targeted killing has been variously defined. Here I provide (in summarised form) a definition set forth and defended in detail elsewhere (Miller 2014b). By definition targeted killing is the premeditated, freely performed, intentional killing of a uniquely identified individual person. Moreover, at the time of the killing the person in question typically does not pose an imminent threat to life or limb. Further, targeted killing typically does not pose a serious risk to the lives of third parties. Finally, the killing takes place in the overall context of an armed conflict in which both the targeter and the person targeted are participants. The protagonists in the armed conflicts in question are the armed forces of political entities, including terrorist organisations. In relation to this definition I make the following points made elsewhere but necessary to make here for purposes of clarification. First, unlike in the case of the shooting by combatants, including by snipers, of enemy combatants in a theatre of war, the targets in targeted killing are uniquely identified; they are not simply anonymous enemy combatants identified by their uniform. Second, unlike in the standard cases of justified use of deadly force by police officers in law enforcement contexts, the targets in targeted killing do not pose an imminent threat at the time of their killing. For example, Osama bin Laden was killed in his domicile during 141

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the night. Third, the potentially large-scale killing of individuals who merely exhibit a pattern of suspicious behaviour is not targeted killing in this sense. Thus the use of drones by the US to inflict relatively heavy casualties on the Taliban and al-Qaeda in Afghanistan and FATA is not necessarily targeted killing in this sense, notwithstanding the US government’s use of terms such as ‘targeted killing’ and ‘surgical strike’ in relation to their use of drones. Indeed, arguably the latter is morally impermissible whereas the former is not (Miller 2014b). The targeted killing in question takes place in: (1) a theatre of war, albeit perhaps war against a non-state actor; or (2) a jurisdictional setting in which there is not effective enforcement of the law in relation to aggressors perpetrating ongoing, serious attacks against the liberal democratic state in question; or (3) a well-ordered, liberal democratic state in peacetime or, indeed, in wartime if the territory in question is enjoying effective law enforcement against aggressors. I take it that whereas targeted killing is in principle morally permissible in type (1) contexts (given the MCM is in place), it is not morally permissible in type (3) contexts (given the LEM is in place). What of type (2) contexts? My response is two-fold. First, the issue needs to be framed in terms of the conflict between the LEM and the MCM. Essentially, neither model can be straightforwardly applied, but both remain relevant. The MCM cannot be straightforwardly applied since the context is not a theatre of war. But neither can the LEM be straightforwardly applied since it is not a jurisdiction in which the laws against terrorists are being effectively applied. Second, I suggest that a hybrid set of conditions might render targeted killing in type (2) morally permissible. The conditions are as follows: (1) the laws against terrorism are ineffective – the default LEM is not available; (2) the lives of innocent civilians are not put at serious risk – the principle of discrimination as it applies in the LEM rather than the more permissive one applicable in the MCM is applied; and (3) the terrorist is a high value target – the principle of military necessity is applicable, but its application is much more stringent (Miller 2014b). In short, targeted killing may well be morally justified in disorderly jurisdictions if it is constrained in ways it would not have to be in theatres of war; that is, if subject to jus ad vim principles. 142

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Preventative Detention If targeted killing is essentially a tactic within the MCM, albeit one which might be informed and, thereby, ‘softened’ by principles emanating from the LEM, arrest and detention (the use of restraining force) is a quintessential tactic within the LEM. However, preventative detention is a coercive measure which is, under normal circumstances, a violation of individual freedom and, as such, a ‘hardening’ of LEM. Nevertheless, I suggest that it may be justified as a counterinsurgency measure. Elsewhere I have argued the following: (1) terrorists are, by definition, guilty of crimes since they murder innocent civilians and, therefore, should be subjected to criminal procedures and punished accordingly; and (2) terrorists who are members of organisations engaged in protracted armed conflict may well be de facto combatants (terrorist-combatants) and, as such, if captured can reasonably be incarcerated until the cessation of hostilities; the same point holds for members of non-terrorist insurrectionary groups (Miller 2014b). I note that many terrorists and terrorist groups are not engaged in protracted armed conflict and, therefore, their members are not combatants, notwithstanding that they may claim that they are. Timothy McVeigh is a case in point; he was a terrorist but not a combatant. On the other hand, ISIS is a terrorist organisation and many of its members fighting pitched battles in Iraq and Syria are combatants. Don Scheid argues for the indefinite detention of what he refers to as mega-terrorists (Scheid 2010). One law enforcement analogy here is with indefinite detention of paedophiles or serial killers; they are simply too dangerous to release. As Scheid points out, mega-terrorists are, by definition, even more dangerous since they are (1) likely to deliberately kill innocent persons but (2) are likely to kill very large numbers of such persons. Another analogy – this time a military one – is with prisoners of war; they are incarcerated until the cessation of hostilities, since otherwise they will simply return to their combat roles. Contrary to Scheid, I prefer the analogy with prisoners of war since in the case of terrorists, unlike paedophiles or serial killers, their terrorist activities are not primarily a function of a more or less unalterable feature of their psychological make-up but rather a purely contingent feature of their political ends (whether these are in turn justice-based, religion-based or otherwise motivated). 143

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Moreover, while insurgencies, wars and terrorist campaigns of armed conflict can go on for a very long time, nevertheless, they typically have an endpoint, namely, the cessation of hostilities. Since such detention has a more or less specifiable and achievable endpoint it is not indefinite. On the other hand, its purpose is, I take it, preventative and not punitive. Its criminal justice analogue is also preventative but different in that it is punitive as well. As already noted, terrorists are, by definition, criminals. However, in my view, but not Schneid’s, unlike paedophiles and serial killers, once terrorists have served their time for their crimes they ought to be released; unless, of course, they are terrorist-combatants and hostilities have not ceased – in which case there is another quite different justification for not releasing them. In light of the above, I now define preventative detention as preventative, non-punitive detention which is terminated on the cessation of hostilities. Is preventative detention in this sense morally permissible as a counterinsurgency tactic? Serial killers, paedophiles and the like aside, preventative detention in this sense is part and parcel of MCM but inconsistent with LEM. It is inconsistent with LEM since it is: forward rather than backward looking; it seeks to prevent rather than punish for crimes already committed; and it is less evidentially robust. It is less evidentially robust because in many cases it is not possible to demonstrate beyond reasonable doubt that a suspected insurgent is in fact an insurgent and one that will take the lives of innocent civilians and/or police/military personnel if they are not incarcerated. Accordingly, preventative detention in theatres of war is morally permissible but preventative detention of (noncombatant) terrorists, non-terrorist (non-combatant) insurgents and the like in well-ordered liberal democratic states, even ones suffering occasional terrorist attacks, is morally impermissible. What of our type (3) contexts – contexts in which the LEM is not being effectively applied? Such contexts include areas under martial law or under a state of emergency (under the operational control of the police). In such cases a temporary suspension of civil liberties may well be morally justified and preventative detention (for example of the leaders of militant groups) might prove to be a useful tool. Moreover, given the seriousness and urgency of the situation, the evidential threshold may need to be relaxed, for example a requirement of reasonable suspicion as 144

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opposed to, say, one of beyond reasonable doubt might be morally acceptable. Here the notion used by Scheid of an escalating level of evidential requirements corresponding to the length of the period of incarceration is relevant. Suppose that the immediate problem is the imminent collective violence of a crowd supportive of, and incited by, some insurgency group. It may be that an arrest by police and a brief period of detention of the ringleaders is sufficient to remove this threat. Moreover, the evidence required to justify such a short-term period of incarceration might be (say) reasonable suspicion. On the other hand, if a suspected leader of an insurrection is to be incarcerated for the entire and relatively lengthy period of a state of emergency (for example a few weeks or months), then the evidential threshold – and consequent thoroughness and timeframe of the associated evidence-gathering investigation – would need to be considerably higher, albeit not necessarily at the level of beyond reasonable doubt. Again, if the period of incarceration under the state of emergency in question is for a number of years then, arguably, the evidential bar justifying incarceration ought to be raised to the level of beyond reasonable doubt. Here I note that evidence in question in these contexts is evidence with respect to the danger posed by a person as a consequence of their role in the relevant organisation; it is not a matter of gathering evidence for the purpose of adjudicating the guilt or innocence of the person for a past crime (albeit such evidence, if it exists, may also be relevant to the matter at hand). The upshot of this discussion is that a ratcheting up of police powers with respect to restraining force may well be justified in disorderly jurisdictions. This is congruent with the doctrine of jus ad vim insofar as it may well need to go hand in glove with a ratcheting down of military use of force.

Conclusion In this chapter I have, firstly, compared and contrasted police use of force and military use of force and in so doing construct what I will refer to as the law enforcement model (LEM) and the military combat model (MCM) (respectively) of the use of force. Secondly, I have applied these models of the use of force to a number of 145

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non-standard contexts of armed conflict involving insurgents and argued that neither model is entirely fit for purpose in these contexts. I have suggested a number of adjustments to these models in their application in these contexts. In doing so I have argued for a need to design and apply a hybrid model (or rather set of hybrid models) in those contexts for which neither LEM nor MCM is fit for purpose. In such contexts the notion of jus ad vim gets considerable purchase since they may well call for a ratcheting down of military force and a correlative ratcheting up of police use of force.

Notes 1. So last resort is a condition of going to war in the first place (jus ad bellum) but not a condition of using lethal force once engaged in war (jus in bello). 2. The attacks were carried out by heavily armed gunmen and suicide bombers who hit a concert hall, a major stadium, restaurants and bars leaving 130 people dead and hundreds wounded. 3. Irregular soldiers are mercenaries, terrorist-combatants, guerrillas and the like. 4. Reductionist accounts include those of Helen Frowe, Jeff McMahan and David Rodin (see, for example, Frowe 2014). Collectivist accounts include those of Christopher Kutz and Daniel Brunstetter (see, for example, Kutz 2005). 5. Some of these theorists are happy to concede some version of rule utilitarianism according to which general compliance with rules might maximise good outcomes notwithstanding that a single beach of a rule might be morally justified in a given context considered on its own. 6. I elaborate the precise nature of the relationship between the individual and collective in Miller (2010, 2014a). Suffice it to say here that I am a relational individualist; so for me there are no irreducibly collective actions but there are different levels, that is, there are multilayered structures of joint action.

References Bayley, David and Robert Perito (2010), The Police in War: Fighting Insurgency, Terrorism and Violent Crime, Boulder: Lynne-Rienner.

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Morality in Armed Conflicts BBC News (2015), ‘Paris Attacks: What Happened’, BBC News, 9 December, (last accessed 3 August). Braun, Megan and Daniel R. Brunstetter (2013), ‘From Jus ad bellum to Jus ad vim: Recalibrating our Understanding of the Moral Use of Force’, Ethics & International Affairs, 27: 1, 87–106. Frowe, Helen (2014), Defensive Killing, Oxford: Oxford University Press. Kutz, Christopher (2005), ‘The Difference Uniforms Make: Collective Violence in Criminal Law and War’, Philosophy and Public Affairs, 33: 2: 148–80. Miller, Seumas (1992), ‘Joint Action’, Philosophical Papers, 21: 3, 275–97. Miller, Seumas (2004), ‘Terrorism and Collective Responsibility: A Response to Narveson and Rosenbaum’, International Journal of Applied Philosophy, 18: 2, 263–81. Miller, Seumas (2005), ‘Is Torture Ever Morally Justifiable?’, International Journal of Applied Philosophy, 19: 2, 179–92. Miller, Seumas (2009), Terrorism and Counter-Terrorism: Ethics and Liberal Democracy, Oxford: Blackwell Publishing. Miller, Seumas (2010), The Moral Foundations of Social Institutions: A Philosophical Study, New York: Cambridge University Press. Miller, Seumas (2014a) ‘Joint Actions, Social Institutions and Collective Goods: A Teleological Account’ in Anita Ziv Konzelmann and Hans Bernhard Schmid (eds), Institutions, Emotions and Group Agents: Contribution to Social Ontology, Dordrecht: Springer, pp. 99–116. Miller, Seumas (2014b), ‘The Ethics of Targeted Killing: Osama bin Laden, Drones and Counter-terrorism’, Public Affairs Quarterly, 28: 4, 317–40. Miller, Seumas (2016), Shooting to Kill: The Ethics of Police and Military Use of Lethal Force, New York: Oxford University Press. Miller, Seumas and John Blackler (2005), Ethical Issues in Policing, Aldershot: Ashgate. Scheid, Don (2010), ‘Indefinite Detention of Mega-Terrorists in the War on Terror’, Criminal Justice Ethics, 29: 1, 1–28. Walzer, Michael [1977] (2006), Just and Unjust Wars: A Moral Argument with Historical Illustrations, New York: Basic Books, 4th edn.

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8

Just War Theory, Armed Force Short of War and Escalation to War

John Lango

Introductory remarks In the Preface to the Fourth Edition of Just and Unjust Wars, Michael Walzer discussed briefly but intriguingly the subject of ‘the use of force-short-of-war’ (Walzer 2006: xv). ‘We urgently need’, he concluded, ‘a theory of just and unjust uses of force’ – that is, a theory of jus ad vim and so on – (Walzer 2006: xv). In this chapter, the term ‘force’ is used to abbreviate the term ‘armed force’. Of course, the term ‘force’ might be used more broadly, so as to encompass the coercive force of ‘trade sanctions’ (Walzer 2006: xvi), the persuasive force of negotiations and types of force other than armed force. However, the focus of this chapter is on the use of armed force short of war (Ford 2013: 65). In other words, the focus is on the use of ‘military force short of war’ (Meernik and Brown 2007: 65). In the absence of war, a drone strike against terrorists is a use of armed force short of war (Braun and Brunstetter 2013). In the absence of war, a special forces operation to rescue hostages is a use of armed force short of war. In writing this chapter, I draw upon the just war theory that I develop in my book, The Ethics of Armed Conflict (Lango 2014), but a reading of that book is not presupposed.1 In the book, I generalise received just war principles, so that they are applicable to uses of armed force short of war, and develop what is, I submit, a theory of just and unjust uses of armed force. 148

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Responding to Walzer, in an important paper about the subject of the use of force short of war, Daniel Brunstetter and Megan Braun contended ‘that a viable theory of jus ad vim can be constructed by recalibrating jus ad bellum criteria and adding a new principle – the probability of escalation’ (Brunstetter and Braun 2013: 88). In this chapter, I argue that indeed received jus ad bellum principles should be revised, but also that such an escalation principle should not be added. Nevertheless, a main theme of my chapter is that a theory of just and unjust uses of force should include a theory of just and unjust escalations. For the sake of illustration, I sketch some cases that I find (somewhat) cogent, or (at least) plausible. But I have no space to attempt to settle controversies about these illustrations. Readers who disagree with some of my illustrations might substitute their own illustrations. This chapter was written in 2015 and therefore reflects the state of play at that time.

Terminology The word ‘war’ is nicely crisp, whereas the phrase ‘the use of force short of war’ is a mouthful. Let me invent the word ‘sowma’, which abbreviates the phrase ‘short-of-war military action’. By stipulation, the term ‘sowma’ has the same extension as the term ‘the use of force short of war’ (TUOFSOW). In contrast to the acronyms TUOFSOW and UFSW, the word ‘sowma’ is easily spoken. I am introducing the word ‘sowma’ as a technical term, in order to have a short counterpart to the word ‘war’. There is the related acronym MOOTW, once favoured by the US military, which abbreviates the term ‘military operations other than war’. There are ‘combat MOOTW’ that use force (for example, to enforce a no-fly zone) and ‘noncombat MOOTW’ that do not use force (for example, to rescue victims of a natural disaster) (US Joint Chiefs of Staff 1995: viii). In referring to ‘jus ad vim actions’, Brunstetter and Braun also utilised, in effect, a short technical term for ‘uses of force short of war’: ‘vim actions’ (Brunstetter and Braun 2013: 87). That term is shortened to ‘vim’ by Christian Enemark (2014: 365). But the meaning of the Latin word vim covers force of all types, including force short of war and force in war. Whether ‘vim’ or ‘vim action’ 149

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or ‘sowma’ or some other technical term, it is helpful to have a short counterpart to the word ‘war’. But what should be meant by the term ‘the use of force short of war’? This question of definition is not answered by stipulating that this term and the technical term ‘sowma’ (or the technical term ‘vim action’) have the same extension. Nor can it be answered fully by reciting paradigm cases, such as the ones mentioned above, for there also are problematic cases, for instance: are current US airstrikes against terrorists in Syria and Iraq uses of force short of war, or is the US at war with a state, albeit one that is unrecognised, the Islamic State? I will return to questions of definition later.

Moral justification Admittedly, questions of definition are important, but I am concerned here primarily with moral questions about the use of force short of war. Specifically, I plan to view the subject of uses of force short of war through the lens of a just war theory. I am especially concerned with a question of moral justification: how should uses of force short of war be morally justified? This question and the other two justification questions investigated here are questions of moral justification. Questions of legal justification are set aside. Sometimes what is legally justified is not morally justified and sometimes what is morally justified is not legally justified. For lack of space, topics that interrelate morality and law are largely beyond the scope of this chapter. More briefly, the question is: how should sowmas be justified? (Henceforth, the adverb ‘morally’ is omitted, but it should be understood as qualifying the verb ‘justified’.) In viewing the subject of sowmas through the lens of a just war theory, I am assuming that this question should be answered by means of (suitably revised or supplemented) just war principles. Traditionally, principles justifying the resort to a war (that is, jus ad bellum principles) are distinguished from principles governing the conduct of a war (that is, jus in bello principles). Analogously, principles justifying the resort to a sowma can be distinguished from principles governing the conduct of a sowma. In this chapter, both jus ad bellum principles and sowma-resort principles are called ‘resort principles’. 150

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In conclusion, the question of justifying uses of force short of war should be answered by means of resort principles. A main aim is to explore two contrasting answers to this question: the monistic answer that there is one set of resort principles for justifying both wars and sowmas versus the dualistic answer that there are two sets of resort principles, one for justifying wars and one for justifying sowmas. In other words, a monist holds that the set of just ad bellum principles is identical to the set of sowma-resort principles, whereas a dualist holds that the former set is not identical to the latter set. (Note that a dualist’s pair of sets could overlap, even differing only in one principle, for example Brunstetter and Braun’s probability of escalation principle.)

Open texture and intermediate cases Having considered a key moral question, this question of justification, I want to consider again a key definitional question: what should be meant by the term ‘the use of force short of war’? The concept of war is an archetype of an ‘indeterminate’ or ‘vague’ concept. Accepting the rudiments of H. L. A. Hart’s theory of the ‘open texture’ of law (Hart 1961: 119–32), I prefer to say that the concept of war has an ‘open texture’. For lack of space, I am unable to consider alternative theories of vagueness (Keefe and Smith 1996). A concept that has an open texture cannot be defined with ‘absolute precision’ (Waismann 1968: 42). Some cases that fall under an open-textured concept are ‘central’ cases, in that the determination that they fall under is clear (or unproblematic or indisputable). Having distinguished cases that clearly fall under an open-textured concept from cases that clearly do not, we are left with the problem of ‘intermediate’ cases. Concerning each of these intermediate cases, we need to ask: how should we determine whether or not this case falls under that open-textured concept? For instance, is the so-called ‘global war on terror’ a war? Is the US currently at war with the Islamic State? Let me outline three approaches to answering this question about intermediate cases. According to one approach, an intermediate case falls under an open-textured concept, if it resembles sufficiently in relevant respects central cases that fall under that concept (Hart 1961: 124). However, in following this ‘relevantist’ approach, 151

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we might fail to settle conceptual disputes about some difficult intermediate cases, for the concepts expressed by the words ‘resembles’, ‘sufficiently’, ‘relevant’ and ‘respects’ are themselves open-textured. Alternatively, we might follow a ‘fiatist’ approach, stipulating arbitrarily that an intermediate case falls (or does not fall) under an open-textured concept. Alternatively, there is a ‘consensualist’ approach: an intermediate case falls under an open-textured concept, if there is sufficient agreement among appropriate parties that it does. Such agreement might be secured by an international treaty, for instance the concept of ‘civilian’ in international humanitarian law. Do the framers of such a treaty decide by fiat, or by sufficient resemblance in relevant respects? The concept of uses of force short of war is problematic, especially because the concept of war is problematic. ‘War should be understood’, according to Brian Orend, ‘as an actual, intentional, and widespread armed conflict’ (Orend 2006: 2 [italics removed]). The scalar concept expressed by the word ‘widespread’ has an open texture, as do other concepts expressed through this quotation (for example, the concept of armed conflict). Evidently then, the concept of ‘the use of force short of war’ has an open texture, because it incorporates the open-textured concept of war (but also because it incorporates the open-textured concepts of force, ‘use of’ and ‘short of’). Nevertheless, despite this open texture, my view is that the question of justifying uses of force short of war can be investigated by means of central cases (and even by means of intermediate cases). Despite open-textured concepts, there can be moral inquiry. Let me respond to a significant objection. A report issued by the Use of Force Committee of the International Law Association ‘found that the term “war”, while still used, has, in general, been replaced in international law by the broader concept of “armed conflict”’ (Use of Force Committee 2010: 1). Accordingly, the objection is that, instead of the question of justifying uses of force short of war, what should be investigated is the question of justifying uses of force short of armed conflict. My response is as follows. Indeed, this broader justification question is quite worthy of investigation – recall that the title of my book on just war theory is The Ethics of Armed Conflict – but the problem of open texture would remain. For the Use of Force Committee of the International Law Association found ‘two characteristics’ possessed by 152

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all armed conflicts: ‘The existence of organized armed groups . . . [e]ngaged in fighting of some intensity’ (Use of Force Committee 2010: 2). Evidently, the scalar concept of ‘some intensity’ has an open texture. Also, the concept of organised armed group has an open texture, as does the concept of fighting.

The probability of escalation principle Let me return to the question of justifying uses of force short of war. In addressing such a question, Brunstetter and Braun have diagnosed a significant moral problem, the problem of escalation to war from uses of force short of war. As the International Crisis Group relates in its informative reports, the world today is plagued with crises. Arguably, the United Nations (UN) Security Council (SC) is empowered by Chapter VII of the UN Charter to authorise the use of force short of war. In many of these contemporary crises, if some SC-authorised UN Member States were to intervene using force short of war, it is probable that there would be escalation to unjustified war. Admittedly, to settle current international crises (for instance, Iran’s nuclear weapons programme), it is often morally imperative to attempt peaceful means (for example, negotiations). Brunstetter and Braun’s paper is especially pertinent to the topic of escalation to war in contemporary crises. However, rather than add a special principle applicable to this type of escalation (namely, their probability of escalation principle), I think that their moral problem should be addressed by means of generalised just war principles that are applicable to escalations of all types. Roughly, the probability of escalation principle is this: those uses of force short of war that would probably escalate to war should be avoided (Brunstetter and Braun 2013: 98–9). Indeed, the principle can be supported by means of some central cases. Consider, for instance, the current crisis in the Ukraine. War by the North Atlantic Treaty Organization (NATO) against Russia would not be justified, nor would NATO military operations to intercept Russian military supplies to the Ukrainian rebels. The latter being a use of force short of war that would probably escalate to a war between NATO and Russia. Nevertheless, the probability of escalation principle can be refuted by means of other central cases. What follows is a sketch of 153

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such a case, one that is schematic. State T is about to invade State D. D would be justified in waging war to counter T’s invasion. D fires a ‘demonstration shot’ (for instance, a single cruise missile strike against a single high-value target) with the aim of deterring T from invading, by signalling the ‘resolve’ to resist. Even though it is probable that there would be escalation to war between D and T, this use by D of force short of war is still justified, on the chance that it would deter T from invading. For the sake of concreteness, let me also sketch a real-world case. Presumably, South Korea would be justified in fighting a defensive war against an invasion by North Korea. Under some circumstances, prior to the imminent outbreak of such a war, South Korea would be justified in using force short of war to counter uses of force short of war by North Korea, even if escalation to war would be probable. My conclusion is that the probability of escalation principle should be rejected. In some cases, when a war would be justified, escalation to that war, from the use of force short of that war, would also be justified. In brief, some escalations are justified, even if most (or almost all) are not. A theory of just and unjust uses of force should include a theory of just and unjust escalations.

On escalating Escalation to war from the use of force short of war is not the only type of escalation. In surveying various types of armed conflict, it should be recognised that there are other types of escalation. During the Cold War, there was the problem of escalation from conventional war to nuclear war (that is, ‘nuclear escalation’). During the Korean War, there was the problem of escalation from limited war (in the Korean Peninsula) to unlimited war (with the Union of Soviet Socialist Republics [USSR]). During the Vietnam War, there was the problem of escalation from counterinsurgency operations against the Vietcong to large-scale airstrikes against North Vietnam. During a war against an aggressor, there is the problem of escalation from defence against invasion to forcible regime change. During an armed humanitarian intervention, there is the problem of escalation from protection of safe havens to embroilment in a civil war. And so forth. A just war theory should include an ethics of escalation that is applicable to escalations of all types. 154

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What is the most effective political policy (or military strategy) concerning escalation? At one extreme, there is a cautious policy of forbearance: roughly, avoid military action when escalation is probable. At the opposite extreme, there is a hazardous policy of ‘escalation dominance’: roughly, have the capability and willingness, to ‘prevail’, however large the scale of the adversary’s escalation. Between these extremes, intermediate policies may be envisaged. For lack of space, a fuller discussion of such escalation policies is beyond the scope of this chapter (but see Morgan et al. 2008). A main point is that, whatever our policy concerning escalation, our uses of force that stem from it must not violate just war principles. How should the concept of escalation be defined? In an informative report by the RAND Corporation, prepared recently for the US Air Force, escalation is defined as ‘an increase in the intensity or scope of conflict that crosses threshold(s) considered significant by one or more of the participants’ (Morgan et al. 2008: 8 [italics removed]). Evidently, this concept of escalation has an open texture, for the scalar concepts of intensity (that is, ‘vertical escalation’) and scope (that is, ‘horizontal escalation’) have open textures, as do concepts expressed by other words (for example, ‘conflict’). In addition to the two dimensions of vertical and horizontal escalation, the words about crossing significant thresholds adumbrate a third ‘subjective’ dimension of escalation, ‘political escalation’ (Morgan et al. 2008: 11, 18). Just as one person’s terrorist is another person’s freedom fighter, so one person’s escalation is another person’s circumscribed defence. Earlier, the question of justifying uses of force short of war was investigated by means of central cases. In what follows, this question of justifying escalations is investigated by means of intermediate cases. Specifically, the concept of escalating to war has an open texture, since both the concept of escalation and the concept of war have open textures. Concerning each intermediate case, we need to ask: how should we determine whether or not this use of force falls under the concept of escalating to war? A schematic case illustrating this last question is sketched as follows. State D and State T share a border. A group of armed exiles (R) from D plots a violent revolution against D’s government. T harbours R. Consequently, R establishes military bases in T’s territory. R plans military operations from these bases across 155

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the border into D’s territory. To counter this imminent threat, D uses force short of war against R. In particular, D attempts, unsuccessfully, to destroy R’s bases in T by means of precision airstrikes. Later, D’s use of force against R increases both in intensity and in scope. In particular, by means of ground troops which cross the border into T’s territory, D attempts both to disrupt T’s support of R and to destroy R’s bases in T. In so doing, some of D’s ground troops encounter some armed resistance from some units of T’s armed forces. How should we determine whether or not this armed conflict between D and T falls under the concept of war? How should we determine whether or not this use of force by D against T falls under the concept of escalating to war?

Perplexing intermediate cases To review, I am investigating, in this chapter, the following two justification questions. How should sowmas be justified? How should escalations be justified? And there is the traditional question: how should wars be justified? Acknowledging three dualisms, a dualist answer to these three questions is that there are three non-identical sets of resort principles: a set of jus ad bellum principles, a set of sowma-resort principles and a set of escalation-resort principles. My view is that such an answer is impeded or confounded by perplexing intermediate cases. Consider, for example, D and T’s armed conflict in the last case sketched above. Obviously, the scalar concept expressed by the phrase ‘some armed resistance’ has an open texture, as do the scalar concepts referenced by the other two occurrences of the word ‘some’ in the same sentence. Hence the sentence can be read as presupposing a scalar concept of ‘intensity or scope of armed conflict’. In constructing a scale (or scales) of armed conflicts of more or less intensity or scope, there is a problem of demarcating a threshold (or thresholds), above which armed conflict is so intense or widespread as to be war and below which it is not. Should such threshold problems be settled by fiat? Nevertheless, one dualist might reason that there is sufficient resemblance in relevant respects between D and T’s armed conflict and central cases of war. In opposition, a second dualist might reason that there is sufficient resemblance in relevant respects 156

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between their armed conflict and central cases of uses of force short of war. A third dualist might want to settle this controversy by fiat, by arbitrarily stipulating that their armed conflict is a war. A fourth dualist might arbitrarily stipulate that both D and T are using force short of war. And a fifth dualist might seek consensus through an international treaty. In addition to perplexing intermediate cases involving the concept of the use of force short of war, there are perplexing intermediate cases involving the concept of escalation to war. Consider again the last case sketched above. Having attempted airstrikes against T, D attempts ground attacks. One dualist might reason that D’s ground attacks, even though more forceful (and destructive) than D’s airstrikes, do not resemble sufficiently in relevant respects central cases of escalation. A second dualist might reason that D’s more forceful ground attacks indeed resemble sufficiently in relevant respects central cases of escalation, but this escalation is from sowmas of lesser intensity or scope to sowmas of greater intensity or scope, because the armed conflict between D and T does not resemble sufficiently in relevant respects central cases of war. A third dualist might reason both that D’s ground attacks resemble sufficiently in relevant respects central cases of escalation and that the armed conflict between D and T resembles sufficiently in relevant respects central cases of war. Other dualists might want to settle the controversy by fiat, by arbitrarily stipulating that there is escalation to war, or that there is escalation but not to war, or that there is not escalation. And another dualist might seek consensus through an international treaty. It is troubling that moral controversies about the use of force might devolve into conceptual disputes about definitions. It is especially troubling that such controversies might be settled by definitional fiat. For instance, a dualist might claim that sowmaresort principles are significantly less stringent than jus ad bellum principles (Walzer 2006: xv). Consequently, a military operation might be permitted by sowma-resort principles, if it is conceptualised as a use of force short of war; whereas it might be prohibited by jus ad bellum principles, if it is conceptualised as war-waging. It is especially troubling that this military operation might be permitted merely by arbitrarily stipulating that it falls under the concept of the use of force short of war. It is also troubling that a moral controversy about whether or not the military operation should be 157

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permitted might devolve into a conceptual dispute about whether or not it resembles sufficiently in relevant respects central cases of uses of force short of war.

Generalised jus ad bellum principles I prefer to cut the Gordian Knot. My thesis is that there should be a single set of resort principles, namely, a set of generalised jus ad bellum principles. These generalised jus ad bellum principles are also sowma-resort principles. Accordingly, it would not matter whether D and T’s armed conflict is conceptualised as a war, or conceptualised as uses of force short of war. And these generalised jus ad bellum principles are also escalation-resort principles. For they are applicable, not only at the start of an armed conflict, but also at critical phases within an armed conflict, including phases of escalation. Consequently, it would not matter whether D’s ground attacks are conceptualised as an escalation to war, or conceptualised as an escalation but not to war, or conceptualised as neither escalation nor war. Despite perplexing intermediate cases, such principles are applicable conclusively. But why are these generalised jus ad bellum principles applicable at phases of escalation? Let me indicate how this question might be answered. There is a problem of individuating wars. For instance, instead of a single Second World War, with two separate theatres of military operations, one against Germany and the other against Japan, were there two wars, a German War and a Japan War? Clearly, just war principles are applicable, whether there was one war, or there were two wars. For another example, imagine that North Korea invades South Korea in 2023; are there two wars, a First Korean War and a Second Korean War; or is there one war, the Korean War, suspended by an armistice in 1953 and resurrected in 2023, after a hiatus of seventy years? Because generalised jus ad bellum principles are applicable at the start of a Second Korean War, my view is that they should also be applicable at the start of a second phase of the Korean War. Moral controversy about just and unjust uses of armed force should not devolve into conceptual disputes about individuation. Concerning escalations, there is a related problem of individuation: how should we distinguish between an escalation within one 158

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and the same armed conflict and the start of a new armed conflict? For instance, instead of a single Korean War, with an escalation from defending South Korea to invading North Korea, were there two wars, a South Korean War and a North Korean War? Because generalised jus ad bellum principles are applicable at the start of this North Korean War, my view is that they should also be applicable at the start of the stated phase of escalation. As we ponder whether to escalate, we should reason as if a new armed conflict were in prospect. Why are the generalised jus ad bellum principles applicable even at critical phases of an armed conflict that are not phases of escalation? Let me briefly summarise part of an answer to this question. Escalation thresholds are somewhat subjective. In the last schematic case sketched above, suppose that T perceives D’s ground attacks as an escalation, whereas D does not. Acknowledging T’s perception, D must justify the ground attacks to T, as if they were an escalation, even if they are not. For moral controversy about whether or not D’s ground attacks are justified should not devolve into a conceptual dispute about whether or not D’s ground attacks are an escalation. Therefore, it is essential that, whether or not a phase where force of greater intensity or scope is used is a phase of escalation, the principles are still applicable. As we ponder whether to use greater force, we should reason as if we would be escalating. In short, there should be a single set of resort principles, applicable to sowmas, escalations and wars (and also uses of force of every other type). For a concrete illustration, remember the range of uses of force by the US against, or in, Iraq from 1990 to the present: the Gulf War, enforcing the no-fly zones, the 2003 invasion, the Iraq counterinsurgency and the airstrikes (and other small-scale military operations) in Iraq against the Islamic State. There are problems of definition and individuation here. Are there two wars (namely, the Gulf War and the 2003 invasion) and three uses of force short of war? Are there two wars (namely, the Gulf War and a second war with two phases, the 2003 invasion and the Iraq counterinsurgency) and two uses of force short of war? Are there three wars (namely, the Gulf War, the 2003 invasion and the Iraq counterinsurgency) and two uses of force short of war? Is there only one use of force short of war (namely, enforcing the no-fly zones) and four wars? Are there five wars? Is there only one war, with five phases, 159

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starting in 1990 and still continuing today? However these questions are answered, the single set of resort principles is applicable to each of the five stated uses of force. What are the received jus ad bellum principles that should be generalised? In the next section, I discuss briefly a generalised last resort principle. In subsequent sections, generalised just cause and proportionality principles are briefly discussed. For lack of space, my discussions of these principles in this chapter have to be brief.2 Eventually, additional jus ad bellum principles are discussed very briefly. Just war principles are formulated differently by different just war theorists. For brevity, my formulations of just war principles here are rather compact.

Last resort A received last resort principle may be formulated compactly as follows. Before resorting to war, every reasonable alternative measure must be attempted. Some alternative measures are peaceful (for example, negotiations) and some are coercive (for example, economic sanctions). Sometimes, before resorting to war, it is reasonable to negotiate and sometimes not. Sometimes, before resorting to war, it is reasonable to impose economic sanctions and sometimes not.3 A dualist might contend that the set of jus ad bellum principles should contain this last resort principle, whereas the set of sowmaresort principles should not (Walzer 2006: xv). For, before resorting to war, every reasonable imposition of economic sanctions must be attempted, but also every reasonable use of force short of war must be attempted. Uses of force short of war and non-military coercive measures such as economic sanctions are alternatives to war coequally. Let me outline a reply to this dualist contention. Because armed conflicts are so highly destructive, a chief function of a just war theory is to morally constrain uses of force. Just as a firebreak ought to be maintained between nuclear warfare and conventional warfare, so a firebreak ought to be maintained between armed conflicts and conflicts of other types. Such firebreaks are fortified by just war principles. Accordingly, epistemic conceptions of moral presumption and burden of proof are essential. When we 160

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deliberate about whether to use force, we have to make the moral presumption that we must not. To override this moral presumption, we have the burden of proving that just war principles are satisfied. In particular, the firebreak between armed conflicts and conflicts of other types is fortified by a generalised last resort principle (Coady 2008: 93). Simply by replacing the word ‘war’ by the phrase ‘a use of force’, the received last resort principle formulated above may be generalised as follows. Before resorting to a use of force, every reasonable alternative measure must be attempted. Sometimes, before resorting to a use of force, it is reasonable to attempt peaceful measures or non-military coercive measures and sometimes not. Sowmas and economic sanctions are not coequal. Let me voice an objection. The concept of uses of force has an open texture, as does the concept of alternative measures. Concerning each intermediate case, we need to ask: how should we determine whether it falls under the concept of uses of force, or the concept of alternative measures? For example, a cyberattack on an electric power grid might resemble a use of force in its physical effects, but also it might resemble an economic sanction in its economic consequences. Should it be conceptualised as a use of force, or should it be conceptualised as an alternative measure? In short, the objection is that the generalised last resort principle is impeded or confounded by perplexing intermediate cases. My response to the objection involves the epistemic conceptions of moral presumption and burden of proof. To fortify the firebreak between armed conflicts and conflicts of other types, we must morally presume that an intermediate case falls under the concept of uses of force and we have the burden of proving that it does not. If we fail to satisfy this burden of proof, we are morally prohibited from attempting it, as an alternative measure to the use of force. Analogously, recognising that the distinction between combatants and civilians is ‘difficult to draw in practice’, the Protocols Additional to the Geneva Conventions establish the ‘paramount presumption that anyone who is not proved to be a combatant has civilian status’ (Detter De Lupis 1987: 241, 243). Additionally, because escalations are often highly destructive, a firebreak ought to be maintained between wars and uses of force short of war, one that is also fortified by means of this generalised last resort principle. How, then, is the principle applicable to escalation to 161

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war from the use of force short of war? Even if the use of force short of war were justified, escalation to war still has to be justified. Even if, before resorting to the use of force short of war, every reasonable alternative measure was attempted, unsuccessfully, the generalised last resort principle still mandates that, before resorting to war, every reasonable alternative measure must be attempted. For example, Pakistan currently harbours terrorists, who pose threats both to Afghanistan and the United States. Even if, before the US resorts to the use of force short of war (for instance, drone strikes) against those terrorists, every reasonable alternative measure is attempted, unsuccessfully, the generalised last resort principle still mandates that, before the US resorts to an invasion of Pakistan, every reasonable alternative measure must be attempted (for instance, negotiations between the US and Pakistan). More generally, various firebreaks ought to be maintained between various types of uses of force (for instance, between a geographically limited war and a worldwide war). How then is the generalised last resort principle applicable to an escalation from uses of force of lesser intensity or scope to uses of force of greater intensity or scope? Even if the uses of force of lesser intensity or scope have been justified, the uses of force of greater intensity or scope must also be justified. Even if, before resorting to the uses of force of lesser intensity or scope, every reasonable alternative measure was attempted, unsuccessfully, the generalised last resort principle still mandates that, before resorting to the uses of force of greater intensity or scope, every reasonable alternative measure must be attempted. Consider yet again the last schematic case sketched above. Having attempted airstrikes against T, D attempts ground attacks. Now suppose that these ground attacks are an escalation. Even if, before resorting to the airstrikes, D attempted every reasonable alternative measure, unsuccessfully. the generalised last resort principle still mandates that, before launching the ground attacks, D must attempt every reasonable alternative measure (for example, negotiations between D and T). Note that, in thus applying the principle, it does not matter whether D’s ground attacks are conceptualised as uses of force of greater intensity or scope that are nonetheless short of war, or conceptualised as a war of invasion. In conclusion, the generalised last resort principle is a sowmaresort principle. Before resorting to a use of force short of war, 162

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every reasonable alternative measure must be attempted. And, before escalating to war from that use of force short of war, every reasonable alternative measure must be attempted. For the generalised last resort principle is also an escalation-resort principle.

Just cause and human rights How should a received just cause principle be generalised, so as to be applicable both to sowmas and to escalations? Just cause principles are formulated quite differently by different just war theorists. For brevity, a received just cause principle, based on the UN Charter, may be formulated compactly as follows. A just cause for interstate war is defence against aggression. This principle is also applicable to an escalation to interstate war from uses of force short of war. For example, before invading Iraq in 2003, the US used force short of war there to enforce no-fly zones. Even if the US was justified in thus enforcing those no-fly zones, the US escalation to a war of invasion still has to be justified. In particular, the principle still mandates that there must be a just cause for that invasion. Furthermore, the principle is applicable to intrawar escalations. Consider, for instance, the Korean War. North Korea started that war, by invading South Korea. The SC authorised a UN military campaign to counter this invasion. Indeed, there was a just cause for the UN military campaign (namely, defence of South Korea against this invasion by North Korea). Having repelled the invasion, the UN military campaign escalated, by invading North Korea, in pursuit of regime change, with the goal of preventing a future invasion of South Korea by North Korea. Even though the UN military campaign was justified in repelling the North Korean invasion, this escalation to a preventive war against future aggression still needs to be justified. In particular, the principle still mandates that there must be a just cause. This received just cause principle is state-centric, in that it is applicable only to wars between states, but there are also armed conflicts within states. Motivated by recent internal conflicts that involve mass atrocities, a just cause principle applicable to armed interventions in such internal conflicts may be formulated compactly as follows. A just cause for armed humanitarian intervention 163

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is countering genocide or other sufficiently grave violations of basic human rights. My view is that this new just cause principle should be generalised, so as to be applicable to uses of force of all types. Paradigmatically, when one state invades another state aggressively or unjustly, basic human rights are sufficiently gravely violated. Accordingly, encompassing both this new principle and the state-centric principle, a generalised just cause principle may be formulated compactly as follows. A just cause for a use of force is countering sufficiently grave violations of basic human rights. Moreover, there is a moral requirement of ‘just correlativity’ between the scale of force and the scale of violations: roughly, smaller-scale violations must be countered by more limited uses of force, but larger-scale violations may be countered by less limited uses of force. Let me compare this generalised just cause principle with the just cause principle propounded by Vitoria: ‘the sole and only just cause for waging war is when harm has been inflicted’ (Vitoria 1991: 303). This classical just cause principle might be revised and generalised as follows. A just cause for a use of force is countering sufficiently grave harms. However, because the concept of harm is overly general, my view is that a generalised just cause principle should be limited to more specific harms, namely, sufficiently grave violations of basic human rights. Indeed, in applying the generalised just cause principle, we can encounter intermediate cases. Especially the scalar concept expressed by the term ‘sufficiently’ has an open texture, but so do concepts expressed by other terms (for instance, ‘basic’). Concerning each intermediate case, we need to ask: how should we determine whether or not basic human rights are gravely violated sufficiently? To fortify the firebreak between using force and not using force, we must morally presume that basic human rights are not gravely violated sufficiently and we have the burden of proving that they are. If we fail to satisfy this burden of proof, we are morally prohibited from using force. This generalised just cause principle is a sowma-resort principle: a just cause for a use of force short of war is countering sufficiently grave violations of basic human rights. Let me sketch a hypothetical case. Some journalists are prisoners of a terrorist group and their basic human rights are sufficiently gravely violated 164

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(for example, by torture). Hence there is a just cause for a smallscale special forces operation to rescue them. And the generalised just cause principle is an escalation-resort principle: a just cause for escalating from uses of force of lesser intensity or scope to uses of force of greater intensity or scope is countering sufficiently grave violations of basic human rights. Even if there is a just cause for the uses of force of lesser intensity or scope, the principle still mandates that there must be a just cause for the uses of force of greater intensity or scope. Even if the uses of force of lesser intensity or scope are justly correlative to the scale of the violations, the uses of force of greater intensity or scope might not be justly correlative.

Just cause for escalating to war from uses of force short of war I am concerned here particularly with a key moral problem, the problem of escalation to war from uses of force short of war. Having discussed how the firebreak between sowmas and war is fortified by means of the generalised last resort principle, I want now to discuss how that firebreak is also fortified by means of this generalised just cause principle. The principle may be specified as follows. A just cause for escalating to war from uses of force short of war is countering sufficiently grave violations of basic human rights. For an illustration, let me sketch a schematic case. Genocide is occurring in State T. T supports the perpetrators (P) of this genocide clandestinely. The SC authorises a UN peacekeeping mission (M) to establish safe havens. M has a Chapter VII mandate, allowing the use of force. There is a just cause for M’s use of force short of war to guard the safe havens against P. Nevertheless, the genocide continues. Consequently, the SC authorises M to launch ground attacks against P. In so doing, M’s armed forces engage in appreciable combat with T’s armed forces. Even though there is a just cause for M’s use of force short of war against P, the principle still mandates that there must be a just cause for M’s resorting to war against T. Indeed, there might be moral controversy about whether there is a just cause for M’s escalating to the waging of war against T. For instance, is the scale of the war justly correlative, or not justly 165

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correlative, to the scale of the genocide? I am differentiating moral controversies from conceptual disputes. Indeed, there might also be a dispute about whether M’s use of force against T should be conceptualised as an escalation to war, or conceptualised as an escalation but not to war. But this conceptual dispute should be differentiated from the moral controversy. Whether or not there is a war and whether or not there is escalation to war, the paramount moral issue should be whether or not there is a just cause for using force to counter genocide.

Proportionality In addition to generalised just cause and last resort principles, let me summarise how the firebreak between sowmas and wars is fortified by means of a generalised proportionality principle. There is significant disagreement among just war theorists about the idea of proportionality. Nonetheless, I think that most (if not all) received proportionality principles can be readily generalised. For brevity, a received proportionality principle may be formulated compactly as follows. The harms of a war must be outweighed by the benefits. Simply by replacing the word ‘war’ by the phrase ‘use of force’, a generalised proportionality principle may be formulated. The harms of a use of force must be outweighed by the benefits. How does this principle differ from the moral requirement of just correlativity? A judgment of just correlativity merely relates the scale of force to the scale of violations, whereas a proportionality judgment relates the totality of harms to the totality of benefits. Let me summarise how this generalised proportionality principle is applicable to an escalation from uses of force of lesser intensity or scope to uses of force of greater intensity or scope: even if the harms of the former are outweighed by the benefits, the principle still mandates that the harms of the latter must be outweighed by the benefits. For example, even if targeted airstrikes are proportionate, escalation to large-scale aerial bombardments might be disproportionate. Straightforwardly, this principle is applicable to sowmas. The harms of a use of force short of war must be outweighed by the benefits. And it is applicable to an escalation to a war from that 166

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use of force short of that war. Even if the harms of that use of force short of that war are outweighed by the benefits, the principle still mandates that the harms of that war must be outweighed by the benefits. Let me indicate how the firebreak between sowmas and wars is fortified by means of this generalised proportionality principle. In many contemporary crises, where basic human rights are gravely violated, uses of force short of war to counter those violations might be proportionate, whereas a war to counter them might be disproportionate. For instance, even though current US airstrikes against the Islamic State in Syria are proportionate, a large-scale US invasion of Syria might be disproportionate.

Concluding remarks Are there additional received just war principles that should be generalised? For lack of space, I have to answer this question very briefly. The set of generalised jus ad bellum principles should also contain a principle of non-combatant immunity. The heart of such a principle may be formulated compactly as follows. Non-combatants must not be harmed intentionally. Indeed, we must not resort to a war (for instance, a nuclear war), if we would thereby harm non-combatants intentionally. In general, we must not resort to any use of force, if we would thereby harm non-combatants intentionally (Walzer 2006: xvii). A main thesis of my book, The Ethics of Armed Conflict, is that the four generalised principles of last resort, just cause, proportionality and non-combatant immunity are the core just war principles. Let me suggest how those who accept additional received just war principles might generalise them. If a war must be authorised by persons whose authority is legitimate, so must any use of force. If a war must be waged with the right intention, so must force of any type be used. If a war must have a reasonable chance of success, so must any use of force. If the goal of a war must be peace, peace must be the goal of any use of force. In conclusion, the concept of uses of force short of war is problematic, especially because the concept of war is problematic. Nonetheless, whether a use of force is conceptualised as a war, 167

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or conceptualised as a use of force short of war, the generalised last resort, just cause, proportionality and non-combatant immunity principles are applicable. The purpose of these principles is to ensure that armed force is used only to counter sufficiently grave violations of basic human rights, as a last resort, proportionately and without harming non-combatants intentionally. Because the principles are applicable to escalations, they fortify the firebreak between sowmas and wars.4

Notes 1. References to the book’s pages are not included in this chapter, since page numbers are readily found in the book’s index. Edinburgh University Press charges for hard copies of this book. But the book is also available without charge as an Open Access book with the most restrictive type of Creative Commons licence. For instance, a PDF file containing it may be freely downloaded from the OAPEN website: https://oapen.org/download?type=document &docid=469286 (accessed 23 September 2017). 2. Some chapters of my book The Ethics of Armed Conflict are devoted to them. 3. There is no space in this chapter to consider the topic of standards of reasonableness. 4. Parts of this chapter were presented at the 2016 Conference of the International Society for Military Ethics (ISME), Annapolis, MD. I wish to thank members of the audience for their comments. I also wish to thank Harry van der Linden for his comments on an earlier draft.

References Braun, Megan and Daniel R. Brunstetter (2013), ‘Rethinking the Criterion for Assessing CIA-Targeted Killings: Drones, Proportionality and Jus ad vim’, Journal of Military Ethics, 12: 4, 304–24. Brunstetter, Daniel R. and Megan Braun (2013), ‘From Jus ad bellum to Jus ad vim: Recalibrating Our of the Moral Use of Force’, Ethics & International Affairs, 27: 1, 87–106. Coady, C. A. J. (2008), Morality and Political Violence, Cambridge: Cambridge University Press.

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Just War Theory and Escalation Detter de Lupis, Ingrid (1987), The Law of War, Cambridge: Cambridge University Press. Enemark, Christian (2014), ‘Drones, Risk, and Perpetual Force’, Ethics & International Affairs, 28: 3, 365–81. Ford, Shannon B. (2013), ‘Jus ad vim and the Just Use of Lethal ForceShort-of-War’, in Fritz Allhoff, Nicholas G. Evans and Adam Henschke (eds), Routledge Handbook of Ethics and War: Just War Theory in the Twenty-first Century, London: Routledge, pp. 63–75. Hart, H. L. A. (1961), The Concept of Law, Oxford: Oxford University Press. Keefe, Rosanna and Peter Smith (eds) (1996), Vagueness: A Reader, Cambridge, MA: The MIT Press. Lango, John W. (2014), The Ethics of Armed Conflict: A Cosmopolitan Just War Theory, Edinburgh: Edinburgh University Press. Meernik, James and Chelsea Brown (2007), ‘The Short Path and the Long Road: Explaining the Duration of US Military Operations’, Journal of Peace Research, 44: 1, 65–80. Morgan, Forrest E., Karl P. Mueller, Evan S. Medelros, Kevin L. Pollpeter and Roger Cliff (2008), Dangerous Thresholds: Managing Escalation in the 21st Century, Santa Monica: RAND Corporation. Orend, Brian (2006), The Morality of War, Peterborough: Broadview Press. US Joint Chiefs of Staff (1995), ‘Joint Doctrine for Military Operations Other Than War’, Joint Publication 3-07, Washington, DC: United States Department of Defense. Use of Force Committee (2010), ‘Final Report on the Meaning of Armed Conflict in International Law’, Use of Force Committee of the International Law Association, 74th Conference of the International Law Association, The Hague, The Netherlands. Vitoria, Francisco de (1991), Political Writings, Cambridge: Cambridge University Press. Waismann, Friedrich (1968), How I See Philosophy, London: Macmillan. Walzer, Michael (2006), Just and Unjust Wars: A Moral Argument with Historical Illustrations, New York: Basic Books, 4th edn.

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9

Jus ad vim and the Question of How to do Just War Theory

Christian Braun1 and Jai Galliott

Since Michael Walzer mused upon a concept of jus ad vim, shortly after hostilities in Iraq, debate about the usefulness of a distinct moral framework regulating the use of force short of war has continued to attract the interest of just war thinkers (Walzer 2006a: xv–vi). In the decade following Walzer’s initial suggestion, jus ad vim has both been welcomed and rejected within the academy.2 Most recently, the debate about jus ad vim has started to engage a conversation that has divided just war thinking into two competing camps, namely Walzer’s interpretation of the just war and its revisionist critics. Writing in Ethics & International Affairs, Helen Frowe and Daniel Brunstetter disagreed about the moral purchase of jus ad vim, the former critiquing the concept from a revisionist perspective as being ‘redundant’, while the latter, arguing in Walzer’s terms, continued to support the viability of the project (Frowe 2016: 117–29; Brunstetter 2016: 131–6). In this chapter, we argue that the debate about jus ad vim is the most recent battle in the larger ‘war of ethics within the ethics of war’ between Walzerian and revisionist just war approaches (Vaha 2013: 182–202). While the increased use of force short of war constitutes a moral issue just war thinkers must grapple with, we concentrate on the meta-level question about how to do the theoretical grappling itself. The idea of jus ad vim provides a unique jumping-off point for considering the shortcomings of the wider debate between the two competing camps, a debate that has become ‘confusingly polarized’ and thus ‘presents a serious 170

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obstacle to genuine dialogue’ (Clark 2017: 327–41). Jus ad vim, imagined as uses of force distinct from both wartime military conduct and peacetime policing, engages the very basis of their disagreement. While Walzerians distinguish between two distinct moralities for war and peace, revisionists assert that there is only one, namely that of individual morality. Thus, jus ad vim, exactly because it seems to be neither war nor peace properly understood, provides a setting where both just war approaches meet on neutral ground. Reassessing the debate between Walzerians and revisionists through jus ad vim, we argue that contemporary just war thinking would benefit from engaging the historical mode of just war reasoning. We point out how Walzer’s just war theory differs from the historical tradition in both substance and method and how the revisionists, in taking Walzer as their point of departure, fail to appreciate the richness of the just war tradition. We argue that going back to the historical mode of reasoning is the best way of ‘doing’ just war theory. Advocating a casuistic re-orientation of just war analysis, we demonstrate how, in contrast to Walzerians and revisionists, a casuistic approach stays true to both the just war tradition’s respect of general moral principles as well as to its inherently practical pedigree. Moreover, we point out how the tool kit of the analytical philosophers can engage with the casuistic nature of the historical approach and thus bring them in closer alignment with this part of just war. We do this by introducing a Thomistic reading of jus ad vim, as engaging Aquinas’s just war thought offers a unique perspective on the contemporary moral issue of targeted killing perceived as the use of force short of war.

Jus ad vim and the ‘rapprochement’ of Walzerians and revisionists One of the main points of disagreement between Walzer and his revisionist critics is Walzer’s claim that war and peace are so different that each has its own morality (Walzer 2015: 127). In contrast, revisionists argue that there is only one morality, namely that of everyday life (McMahan 2004: 694). The reason why jus ad vim is uniquely positioned to reassess the larger debate between the two competing camps is that it seems to sit in-between the theatres of war and peace. In his treatment of counterterrorism 171

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policies, which might be imagined as acts of jus ad vim, Walzer argues that there is a ‘different “feel”’ to such operations as they are neither outright acts of war, nor of peace (Walzer 2007: 484). As a consequence, he argues that ‘we can’t stop with just war theory’, identifying a need to ‘maneuver between our conception of combat and our conception of police work, between international conflict and domestic crime, between the zones of war and peace’ (Walzer 2006b: 12). Walzer thus abandons the strict distinction between two moralities which he continues to uphold for what he sees as a clear dichotomy between war and peace. While Walzer’s ‘manoeuvre’ between these two types of morality gives birth to jus ad vim as a distinct third moral framework which, of course, the revisionists must reject, the debate about jus ad vim nonetheless pushes Walzer in the direction of his critics. This inconsistency in his theory, as well as others, is the result of his distinct interpretation of the just war and, in particular, his unconventional use of the method of casuistry. Brunstetter’s jus ad vim builds on Walzer’s initial idea although he does not consider himself to be a ‘pure Walzerian’.3 Consequently, the following critique of Walzer’s method does not in all respects apply to Brunstetter as he, in contrast to Walzer, does fully engage with the just war tradition.4

Walzer’s interpretation of the just war As Walzer notes in the preface of Just and Unjust Wars, his idea of the morality of war differs from that of political or moral philosophers. The moral problem of war, for Walzer, is so serious that philosophical reflection seems to be the wrong way of approaching it. Consequently, Walzer’s ‘main concern is not with the making of the moral world but with its present character’ (Walzer 2015: xxvi), an acknowledgement in which his critics detect an ‘ignorance about the foundations of ethics’ (Boyle 2006: 83–98). In Walzer’s opinion, it is the present state of our moral judgments that matters and engaging with the foundations of ethics in a classical analytical manner would unnecessarily make his task as moralist more difficult. Not directly considering ‘the most profound questions of moral philosophy’ he thus advertises his book as one of a ‘practical morality’ with ‘historical illustrations’. Furthermore, Walzer makes an argument for casuistry as the best method for 172

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‘practical morality’. Reflecting on historical cases, Walzer arrives at moral judgments about when it is justified to go to war and how such wars should be fought. While making such arguments, Walzer places emphasis on the experiences soldiers have on the battlefield (Walzer 2015: xxvii–xxviii). One general problem with Walzer’s just war theory, however, is that the type of casuistry he employs is in tension with the method of casuistry as it has historically been understood. Walzer’s interpretation of the just war, as his critics argue, is, at times, a legalist reading. In particular, perhaps as the result of his secular socialist background, Walzer does not thoroughly appreciate the just war tradition and its mainly Christian roots (Brown 2018: 205–15). Although he acknowledges that morality and law do not entirely overlap in the moral argument about war and he explicitly objects to the way international lawyers approach the regulation of war, it seems that, in parts of his analysis, the legal aspect dominates. Rengger, for example, laments that Walzer builds his account around the bedrocks of the legalist paradigm and the domestic analogy which subsequently ‘do the opposite of what his opening preface suggests’ (Rengger 2005: 143–61). This does not rule out, as Rengger acknowledges, that Walzer maintains casuistical elements, but at times he adopts a reading of the just war that is more legalistic than casuistical. Walzer downplays the importance of general moral principles through taking the legalist paradigm as his starting point. In his reasoning, the legalist paradigm takes on the function of a ‘frame’ through which he sees the moral world (Johnson 2014: 5). This does not necessarily mean that he has no place for general moral principles at all as, of course, the legalist paradigm, to a large extent, historically derives from those general precepts. However, the frame of international law makes him at times de-emphasise some of the most important and arguably commonly accepted moral principles such as the requirement to discriminate between the guilty and the innocent as he does in his defence of the moral equality of combatants. In contrast to Walzer’s reading, the traditional method of casuistry attempts to balance general moral principles and particular circumstances (Coates 2016: 313). Interestingly, the (legal) equality of combatants which is part of today’s international law does, in fact, have roots within the just war tradition. However, while the origins of the argument for legal equality are commonly associated with the 173

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just war thinker Francisco de Vitoria in the sixteenth century, the argument for legal and moral equality originated from a competing line of scholars, the so-called ‘regular war’. The latter approach, which has roots that reach as far back as to the fourteenth century, argued for the complete separation of jus ad bellum and jus in bello and culminated in the thought of Emer de Vattel in the eighteenth century. Unsurprisingly, given his disinterest in the history of just war, Walzer erroneously identifies the moral symmetry thesis as an argument of the classical just war (Reichberg 2018: 72). In addition to this general critique of Walzer’s casuistry, he also seems to commit what Coates has called the two principal forms of casuistry’s abuse: the problem of being either too deductive or too inductive (Coates 2016: 28). The problem of being too deductive, related to the general critique of Walzer’s casuistry, means that principles are articulated before turning to circumstances and the consideration of circumstances that follows makes no contribution to the principles as such, directly in contradiction of Walzer’s intellectual goal. We encounter this ‘abuse’ in Walzer’s very embrace of the legalist paradigm, a set of principles and rules in whose origin Walzer seems to have no particular interest. As Walzer starts from the legalist paradigm he, at times, seems to overlook or is willing to integrate into his theory sometimes-morally problematic rules such as the symmetry thesis. When this is the case, his ‘historical illustrations’ take on more of an illustrative rather than a guiding function. Traditional casuistry, however, is an ‘experiential’ method’ in which the cases are the key to moral analysis; they are employed in order to articulate, test and refine principles vis-à-vis moral experience which is always subject to circumstances (Coates 2016: 28–9). The exact opposite takes place when Walzer’s casuistry is too inductive and provides an insufficient guide in uncommon and extreme cases to which existing moral principles do not so easily apply; such is the case with the rapid development of military technology (Boyle 2006: 92). Where this leaves a vacuum, Walzer displays a tendency to divert to consequentialist thinking. In some cases, circumstances are given excessive weight resulting in a willingness to tolerate questionable harms. The prime example for this mistake is his argument for a scenario of ‘supreme emergency’ (Walzer 2015: 250–67). Here, Walzer, due to the threat posed by Germany during parts of the Second World War, 174

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is willing to abandon one of the just war tradition’s core precepts, namely the idea of non-combatant immunity. This based on the benefit derived from stopping the spread of Nazi ideology and terror. Moreover, the framework of jus ad vim imagined as a distinct third morality besides those of war and peace is arguably the result of excessive induction. Instead of, for example, assessing how the ad bellum principles might be applied to small-scale applications of force, Walzer advocates a distinct new moral framework for which Brunstetter and his co-author Braun have suggested a novel principle called the ‘probability of escalation’ (Brunstetter and Braun, 2013: 97–00). Since the publication of the initial piece, reprinted in this book, Brunstetter has elaborated on the jus ad vim framework which he imagines as a larger research project, most recently suggesting the development of a jus in vi and jus post vim (see final chapter; Brunstetter 2016: 135). Frowe’s claim of redundancy points to the inductive trap. For revisionists, Brunstetter, driven by current affairs, is seen to commit a double mistake: not only is jus ad vim redundant as a distinct moral framework, the new criterion of probability of escalation is already part of the proportionality principle of the traditional jus ad bellum (Frowe 2016: 121).

Walzer’s revisionist critics Since the publication of Just and Unjust Wars in 1977, Walzer’s just war has received significant critical attention. Revisionists suggest that while earlier critics only caused ‘cracks’ in his theory, during the last twenty years, the cracks ‘have widened into gaping crevices’ (McMahan 2012a). A diverse set of revisionist philosophers working within the analytical tradition have meticulously scrutinised Walzer’s argument. Revisionists commonly rely on Rawls’s method of reflective equilibrium and take Walzer’s conceptualisation as the ruling theory which must be checked for logical flaws. Their overall goal is to construct a better theory (Lazar 2017: 114). To do that, building on their own intuitions, most revisionists rely on thought experiments quite different from the ‘historical illustrations’ Walzer employs in his casuistic approach. Consequently, critics of the revisionist approach point to a ‘theoretical bias against the historical or contingent’ as the direct result of their abstract methodology (Coates 175

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2016: 9–10). The prime concern for revisionists is the prominent role Walzerians allocate to the state. They reject the domestic analogy and argue that moral responsibility for killing in war rests with individuals, not states. Revisionists seek to contradict Walzer’s just war which they describe as ‘a very state-based, collectivist approach to war’ and argue for a ‘reductive individualism’ which is reductivist as result of the assumption that the rules which regulate killing in war are the same as those regulating interpersonal killing outside war. It is likewise individualist due to the claim that moral theory must concentrate on individuals rather than collectives such as, for example, nation-states (Frowe 2014: 13). Unsurprisingly, revisionists object to the central arguments of Walzer’s theory, including the logical separation between the principles of jus ad bellum and jus in bello, the moral equality of combatants and the immunity of non-combatants. With regard to practical consequences, the discussion of the role of codified rules within the morality of war has been a major issue of contention between Walzerians and revisionists. As pointed out above, Walzer’s ‘marriage of law and morality’ sees moral debate as, at times, overlapping with legal debate (Lucas 2005: 53). Revisionists, however, consider these debates as separate. Their focus is on morality only and they thus distinguish between what they call ‘the deep morality of war’ and the legality of war (McMahan 2004: 729–33). Revisionists are perhaps best described as idealists.

Jus ad vim and the ‘war of ethics’ Brunstetter begins his rebuttal of Frowe’s critique by situating the conversation about jus ad vim within the wider debate between Walzerians and revisionists. He asserts that Frowe’s understanding about the use of force derives from a worldview that is ‘fundamentally’ different from his Walzerian just war approach. In particular, he takes issue with the revisionist claim that there is no moral difference between the state of war and the state of peace and, consequently, no such thing as a moral equality of combatants. Brunstetter further rejects the rights-based liability account which revisionists propose instead (Brunstetter 2016: 131). Unsurprisingly, as revisionists only accept one morality, Frowe, in her critique, detected an unnecessary concentration on the question about whether a specific 176

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use of force counts as war (Frowe 2016: 122). Furthermore, she criticised Brunstetter for seeming to consider the ad bellum principles as a ‘one-off judgment’ which only needs to be met at the onset of war while, correctly interpreted, must continuously be reassessed as long as the war lasts (Frowe 2016: 119–20). Most importantly, she argues that jus ad vim, as a distinct moral framework besides jus ad bellum, is ‘redundant’; the existing jus ad bellum framework can appropriately judge uses of force short of war. In particular, Frowe dedicates significant attention to the alleged redundancy of the proportionality criterion (Frowe 2016: 123–6). With regard to method, the fundamental differences between the two competing camps can also be found in the two papers. Brunstetter’s starting point, following Walzer’s approach, has been real cases of force short of war (Brunstetter 2016: 131). Quite the contrary is the case with Frowe. As with other revisionists, she does not require the resort to history to make an attempt at proving Brunstetter wrong. Instead, she can resort to a thought experiment in order to arrive at a state of reflective equilibrium (Frowe 2016: 121).

The historical just war and just war tradition Importantly, despite the differences between the Walzerian and revisionist just war approaches, both share an assumption in which they deviate from the historical approach to just war and the way of reasoning employed from its early beginnings until the dawn of the modern era. As we saw above, Walzer, by engaging moral principles through the legalist frame only, does not thoroughly engage the history of those precepts. As O’Driscoll points out, Walzer’s understanding has been carried on by revisionist just war theorists who seek to avoid engaging the historical development of the tradition and advocate a more analytical approach regarding its principles (O’Driscoll 2013: 49). At times, Walzer’s de-emphasis of the history of just war argument leads to thought that is too relative to time and circumstance, and thus morally problematic interpretations in a small but growing number of scenarios. For example, as pointed out above, he presents the moral equality of combatants as the default position of just war thinking. Due to his hesitancy to fully engage with the tradition he thus abandons one of the core precepts of the historical just 177

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war, namely to determine the justness of waging war according to the culpability of one’s opponent. While Walzer justifies his theory through real-world examples and shuns the revisionists for their reliance on artificial thought experiments, he also misses something by downplaying the argument of earlier thinkers. For example, the historical origin of Walzer’s argument for a moral equality of combatants lies with Vitoria’s notion of what Johnson refers to as a state of ‘simultaneous ostensible justice’ (Johnson 1975: 20–1). Due to the difficulty of determining which side was fighting for a just cause, Vitoria argued for granting equal rights to both sides. However, Vitoria did not claim that the combatant fighting for the unjust side was the just combatant’s moral equal.5 As a result of his neglect of the just war tradition, Walzer, in his defence of the moral symmetry thesis, starts from the legalist paradigm which grants equal rights to belligerents regardless of just cause and, then, like ‘regular war’ thinkers, problematically equates legal and moral argument. Such an analytical understanding of the role of history differs markedly from the historical approach which seeks to create continuity between past and present and consequently requires a deep engagement with the work of previous thinkers. Importantly, this does not at all mean that inherited principles may not be questioned: ‘The point is that cultivating a sense of the past need not enslave us to it. Rather, the hope must be that it will bestow upon us a deeper, more variegated perspective on the challenges we face today’ (Brunstetter and O’Driscoll 2017: 4). St Thomas Aquinas, for example, came to his conclusions about whether any war could be just through dialectically linking his own position to the particular opinions of his predecessors. The approach of analytical philosophers inverts the reasoning process of the historical just war. This approach started with historical thinking about the ethics of war before analysing particular issues for their own sake (Reichberg 2018: 59–60). Crucially, the historical just war was also built around the pillar of practical relevance (Reichberg 2018: 65). In this regard, Walzer is very much in line with the historical approach, as he considers the experiences men and women have on the battlefield. Most of the revisionists, however, approach the ethics of war by employing either far-fetched or other-worldly thought experiments. Given the fundamental difference between the historical just war and Walzer’s just war theory, contemporary reflection about 178

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the morality of war largely neglects the historical mode of just war reasoning. Though McMahan (2012b) suggests that the revisionist account is in some respects a reversion to the classical theory that was superseded by the traditional theory several centuries ago, namely the idea that it is individual persons, not states, who kill and are killed in war, in identifying Walzer’s theory as the dominant one, which they subsequently spend most of their intellectual effort attempting to replace and contradict, revisionists do themselves no favours. Walzer, for his part, disdains revisionists’ impractical and ahistorical mode of reasoning (Walzer 2015: 335–46). Is it, we might therefore ask, still possible to speak of one debate about the ethics of war or have we reached a state in which two competing camps must talk past one another? The answer to this question might be found in the concept of just war tradition, a tradition that, depending on where one wants to locate its beginning, reaches back more than a thousand years. It is the essence of traditions that they are adapted in the light of changing circumstances; although ‘resilient’, traditions are ‘not immutable practices’ (Nardin 1992: 3). Unsurprisingly, over those many centuries, a diverse set of thinkers argued in just war terms. Contributions were made by theologians, philosophers, lawyers and members of the military profession. Given this multifaceted heritage, we might ask whether it is appropriate to speak of a just war tradition at all. The issue underlying the debate about just war tradition is fundamentally about whether the different approaches have sufficient common ground that allows for classifying them as belonging to one singular tradition. However, traditions of thought are never univocal, as a tradition that speaks with one voice ceases to be a tradition (Coates 2016: 5). Put differently, it is necessary for a tradition to pronounce differences within a shared identity. Arguably, there are enough commonalities between the different approaches that classifying them as belonging to one tradition is justified; in O’Driscoll’s words: ‘many just war theories, one just war tradition’ (O’Driscoll 2008: 109). Johnson provides an image that helps one to grasp the idea of a single just war tradition: [M]y own position is that we should speak of just war tradition, not simply one doctrine or another, understanding the tradition to include a number of related streams of thought that are reflected in the diversity of

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Force Short of War in Modern Conflict perspectives found in current just war debate. . . . I like to describe just war tradition as a whole by the metaphor of a river flowing through its delta toward the sea. The common stream forms, separates, and forms again, with the main flow now being carried by this channel, now by that one. When all its parts are understood together, just war tradition represents a cultural consensus on when war is justified and what limits should be observed in fighting justly. (Johnson 1995: 148)

While it is beyond question that revisionists engage with the idiom and ideas of just war, the way they do it markedly differs from both the historical and Walzerian just war. With few exceptions, revisionists see no benefit in critically assessing the debates that define the tradition. It is thus worth investigating whether revisionists must remain at the sidelines of the broader just war debate or whether they can be brought into closer alignment with their non-analytical fellows. In the following, we argue that the latter is in fact possible if revisionists employ their unique toolkit within a revived just war casuistry.

A casuistry true to the historical just war A return to casuistry proper requires serious changes vis-à-vis Walzer’s casuistic approach. In order to fully grasp the scope of this method some contextualisation is required. Casuistry has a long history during which it dominated moral discourse and then fell out of favour, in a cyclical fashion, for considerable periods of time. It is no ethical theory in the sense of Kantianism or utilitarianism because it neither tries to advance a comprehensive account of ethics nor does it constitute an account of how ethical decisions are ultimately grounded (Strong 2000: 330). Particularly since the 1960s, caused by developments in medical ethics, casuistry has had a revival of which Walzer’s Just and Unjust Wars was a part. Jonsen and Toulmin provide the following definition of casuistry: [T]he analysis of moral issues, using procedures of reasoning based on paradigms and analogies, leading to the formulation of expert opinions about the existence and stringency of particular moral obligations, framed in terms of rules or maxims that are general but

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The Question of How to do Just War Theory not universal or invariable, since they hold good with certainty only in the typical conditions of the agent and circumstances of action. (Jonsen and Toulmin 1988: 257)

Traditional casuistry starts with the morphology of a case, ‘the interplay of circumstances and maxims’. The circumstances are the ‘who, what, when, where, why, how, and by what means’ of a case. Circumstances, however, do not constitute a case’s core. That position falls to a case’s maxims, ‘brief rule-like sayings that give moral identity to the case’. Such maxims can be expressed in several ways as for example through ethical principles, rights, duties or virtues. As Jonsen explains, it is the work of the casuist to, besides identifying the maxims present, judge which maxim should govern the case and, eventually, whether the maxim needs to be adapted or replaced (Jonsen 1991: 289–99). The next step is to line up cases in a certain order in a taxonomy of cases. The casuist starts the taxonomy with the so-called paradigm case. This case’s resolution has been commonly accepted as morally appropriate. In contrast, Walzer’s method does not employ paradigm cases in the way traditional casuistry does. He claims that the Second World War functions as his ‘paradigm’, but such an employment fails on two grounds (Walzer 2015: xviii). First, taking the Second World War as the paradigm is too broad a category. A traditional paradigm would concentrate on one particular operation because, as we will see shortly, casuistical reflection requires a sufficient detail of a mission’s circumstances. Second, as Walzer reflects on the various issues he considers in Just and Unjust Wars, there is no systematic use of the paradigm as an agenda setter inherent to traditional casuistry. The use of a paradigm case shows that casuistry is not a deductive approach of the kind of applied ethics approaches, such as principlism, which simply apply moral theories to cases. In contrast, the argument is developed through a comparison of the paradigm case with other, less clear, cases. In this sense, it is more of a ‘bottom up’ inductive process that employs a settled paradigm case to make judgments regarding novel cases. However, this does not mean that the analysis cannot consider general moral principles. Rather, traditional casuistry seeks a balance between general moral principles and particular circumstances. In this sense, casuistry ‘is synonymous with practical reasoning’ and thus conforms to the inherently 181

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practical nature of the historical just war idea. For example, the early Church, where Jonsen situates the beginnings of casuistry, had to distinguish between ‘counsels of perfection’, encountered in the word of Jesus, and ‘moral imperatives’ listed in the Decalogue. In fact, the Christian just war tradition is the very result of such a casuistry. St Augustine’s reflections on just war were in fact aimed at reconciling Jesus’s teaching on non-violence with the Decalogue’s demand of love of neighbour. This, in fact, as we saw above, is where Walzer abandons the traditional casuistical mode of reasoning when he fails to fully engage the origins of the moral debate and opts for the legalist paradigm as his point of departure. As pointed out above, although the legalist paradigm does in fact have roots in the just war tradition, Walzer neglects those as he starts from the contemporary international legal regulative framework. Balancing general moral principles and the demands of particular circumstances requires ‘intellectual ingenuity’, which constitutes ‘the heart of any casuistry’ (Jonsen 2005: 58). Next in the taxonomy belong cases that are not as clear as the paradigm case and allow for second thoughts about the rightness or wrongness of the action taken. In each case under consideration, the casuist raises the question of whether the changes in circumstances require an adaptation or even replacement of the maxims identified initially. It goes without saying, then, that the cases under consideration must be portrayed in sufficient detail. Instances of the use of lethal force and the decision-making leading up to them are often particularly complex. Simplifying the portrait of cases has a negative impact on their purchase in moral evaluation. That is why proper casuistry requires a sufficiently detailed presentation of a case’s circumstances. Walzer, again, fails in so doing when he acknowledges in the preface of his book that his ‘cases are necessarily sketched in outline form. In order to make them exemplary, I have had to abridge their ambiguities’ (Walzer 2015: xxviii). For example, with regard to jus ad vim, consider the insufficient depth of his reflection about the presumably first targeted killing carried out by the United States after the terrorist attacks of 11 September 2001. Walzer simply presents this operation as ‘the 2002 targeted killing of a group of al-Qaeda militants traveling in a van in South Yemen by a rocket fired from an American helicopter’ (Walzer 2007: 480). He then goes on to take this instance as example of the ‘in-between’ zones requiring 182

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a concept he elsewhere calls jus ad vim. Abridging circumstances to such an extent, although the case was admittedly clouded in government secrecy at the time, is irreconcilable with proper casuistry. Arguably, it is closer to revisionists’ analytical construction than to traditional casuistry. Analogous reasoning vis-à-vis the paradigm is key in casuistical analysis. Having completed the taxonomy, the casuist can then reach a verdict. Approaching the conclusion, casuistry pays attention to the ‘kinetics’ of a case. The casuist tries to identify the ‘moral movement’ the case imparts on other cases (Jonsen 1991: 303). In order to detect this movement, it is crucial to consider the interplay between maxims and circumstances as the relevance of a maxim depends on the circumstances of the case.

Towards a closer alignment: Revisionists as lockkeepers As we have seen so far, due to the violation of the two pillars of the historical just war, revisionists advocate an understanding of just war that is without precedent. In response, Walzer appears to see no place for revisionists within the just war tradition. Such a binary judgment seems too harsh to us although there can be no denial that much of recent revisionist just war thinking has been both ahistorical and impractical. It seems odd to deny the analytical philosophers a place within the tradition because, without a doubt, they reason about questions of war and peace and, to name just one example, McMahan’s re-emphasis of jus ad bellum is very much in line with the historical tradition. The solution for the problem of this lack of engagement, ironically, might be found in the traditional method of casuistry. As we saw above in the example of Walzer, a casuist can commit two types of abuses. On the one hand, being too deductive or, on the other hand, too inductive. One of the beauties of the method of casuistry is that it is does not deny the moral value of the work of theorists who come to different conclusions while judging the same moral problem (Jonsen 2005: 59). In fact, it is part of the very nature of the historical just war that thinkers reach different conclusions regarding the appropriate interpretation of principles and cases. The use of casuistry only becomes problematic 183

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or arguably ceases to constitute casuistry proper when the casuist commits one, or both, of the abuses just mentioned. Historically, casuists ensured all by themselves that their analyses conformed to the principles of their method. In fact, their failure to do so, after Blaise Pascal’s powerful critique, caused casuistry’s historical downfall. Detecting such abuses, however, is not always straightforward as, for example, Walzer’s case illustrates. That is why it took several decades for revisionists to emerge and fully reveal the logical inconsistencies of Walzer’s just war theory as applied to force short of war. Building on Coates’s idea that the revisionists may provide ‘impetus for reform’, the analytical just war is arguably capable like no other approach to pinpoint the abuses of casuistry (Coates 2016: 17). Whenever a casuist falls into one of their method’s traps, the analytical philosophers may make their voice heard and expose the flawed reasoning. Having the revisionists checking on contemporary casuistry from outside, as an independent body, would be beneficial to today’s moral debate about just war. In this sense, the analytical philosophers are, to paraphrase Jonsen, part of ‘the broader community of believers’ that, although they are not members of the ‘contemporary casuistic community’ as such, they check the credibility of contemporary casuistry (Jonsen 2005: 59). This is a task that revisionists may accept, as they are not interested in engaging the historical tradition but in testing the dominant theory and, if possible, developing a better one. In other words, revisionists are uniquely positioned to take on the role of lockkeeper. To pick up Johnson’s image of the just war tradition as one giant stream that includes several related streams, the revisionists, when necessary, may stop the flow of poor casuistry. What we are suggesting here is that, in a sense, the revisionists have chosen the wrong target in Walzer. They have tried to replace an ‘orthodoxy’ that has little in common with the historical just war. Revisionists have certainly been correct in identifying his theory as the dominant one in contemporary debate. However, through concentrating on an author who himself downplays the historical foundations of the tradition, they have insufficiently engaged the arguments of historical thinkers. We argue that revisionists can make a more insightful contribution to just war thinking by acting as interlocutor with a properly casuistical account of the just war tradition. Revisionists could thus help to ensure that there is a space for applied and case-based reasoning within the 184

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ethics of war that is both alert to the realities of today’s conduct and to the insights of those who have gone before us.

The relationship between the revisionist and historical just war arguments Having provided the revisionists with a new target, what would the interaction between them and a proper casuistic just war approach look like in practice? In the following, we propose a traditional casuistic analysis of the issue of jus ad vim based on the just war thinking of St Thomas Aquinas and demonstrate how the lockkeeper function of revisionists would prevent such an analysis from committing either the deductive or the inductive abuse. Referring back to St Thomas can illuminate today’s debate about the morality of war by recovering a set of ideas that have been either lost or rejected by contemporary thinkers. It is important to note at the beginning that we imagine jus ad vim as the targeted killing of culpable unjust non-state actors.6 Our conceptualisation of the use of force short of war is thus narrower than Brunstetter’s who, for example, also includes international ‘air campaigns of limited duration’ (Brunstetter 2016: 135). From a Thomist perspective, Frowe might be too bold in her assertion that jus ad vim as a distinct moral framework is redundant, but it is certainly possible that, as a distinct framework, it would be much less broadly applicable. The established jus ad bellum criteria, for St Thomas, sovereign authority, just cause and right intention, would go a long way toward evaluating the use of force. However, to determine the true relevance of a Thomist casuistry, what needs to be done is to interpret the received criteria considering novel circumstances. In other words, the increased use of force short of war requires a casuistical investigation. As it turns out, there are curious parallels between the circumstances the ‘Angelic Doctor’ faced during his days and the contemporary moral issue of jihadist terrorism. A Thomistic casuistry would thus be immune to the charge of conservatism often held against the historical approach (O’Driscoll 2013: 53). As the debate between Brunstetter and Frowe illustrates, contemporary theorising has had a focus on the question of whether a particular action counts as war. Crucial to the debate about jus ad vim is that, during the 185

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days of St Thomas, the common use of the term for war (bellum) referred to any internal or external use of force by a sovereign authority. Private uses of force (duellum), however, could not rise to the level of war (Johnson 2014: 31). The rationale behind this ‘sovereign authority’ criterion was to solve the question about who could licitly use the sword. Prior to this restriction, there had been a high level of social violence perpetrated ‘by local warlords or armed gangs’ (Johnson 1999: 46) as well as debate about the question of whether the Church could be justified in using the sword. Given this parallel to today’s terrorist threat, it is worth investigating whether recovering the old understanding of sovereign authority can advance moral debate. In other words, from a Thomistic perspective, the contemporary confrontation with jihadist terrorism amounts to a ‘war’ the state has the authority to wage while individual terrorists have no authority to use force. Following from this, Walzer’s notion of a state of war in which both sides enter the battlefield as moral equals would have been alien to Aquinas. For him, any war contained two wars, most often a just and an unjust one. Naturally, the unjust side would not be the moral equal of the just side (Reichberg 2017: 24). Consequently, by abandoning the debate about whether certain actions count as war or not, moral debate would be able to refocus on the key issue of whether a certain application of force is licit or not. In addition, as O’Driscoll noted, the historical approach can be used to challenge established authority by questioning some of its precepts which may today be considered as fixed but had not at all been fixed in the past (O’Driscoll 2013: 60). St Thomas’s just war thinking might be helpful in questioning such conservatism. For example, while the punitive use of force was an essential part of Aquinas’s reasoning, contemporary debate has mostly been built around the just cause of self-defence (Murphy 2012: 175–96). We might thus ask whether the circumstances of today’s asymmetric warfare call for a return to a Thomistic desert-based culpability account with regard to targeted killing. Indeed, there are, again, curious parallels between the debate during St Thomas’s days and today’s argument to intervene in those ungoverned territories which allow terrorists to hide and plot attacks. As Cox notes, for most medieval writers like Aquinas, punishing injustice was ‘paramount’: ‘Since injustice could be found at both home and abroad, 186

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one’s obligation to combat injustice did not stop at one’s geographic borders, which were often in flux during the Middle Ages’ (Cox 2018: 44). Such a reading would provide a rich target for revisionists who embrace a strict liability account and consequently reject the idea of punitive force (McMahan 2009: 157). A further advantage of undertaking a Thomistic analysis of uses of force which we might refer to as jus ad vim is that it enables us to recapture the criterion of right intention which neither Walzer nor revisionists seem to appreciate sufficiently.7 Additionally, not only would Aquinas’s virtue ethics perspective force revisionists to engage with one of the key principles of the historical just war, it could also address another shortcoming of contemporary debate. As O’Driscoll noted, contemporary debate has reduced the just war tradition to a single narrative that is portrayed as the one and only starting point of analysis. Consequently, the field has been unnecessarily restricted. To overcome this shortcoming, he suggested an appreciation of pre-Christian thinking about the ethics of war (O’Driscoll 2013: 62). We suggest that by employing St Thomas, we can have the best of both worlds as the ‘Angel of the Schools’ combined the Christian outlook on the just war taken from St Augustine with the virtue ethics approach of Aristotle.8 With regard to the actual casuistic analysis, not unlike Walzer and Brunstetter, our starting point is an uneasiness about the increased use of small-scale force in the ‘war against al-Qaeda and associated forces’ started by the Bush administration, which led to and involved other practices with which we are equally concerned, and has been continued by both the Obama and Trump administrations. To assess the morality of jus ad vim perceived as the policy of targeted killing, we would identify a paradigm case and compare it to contemporary cases whose resolutions, in contrast to that of the paradigm case, seem morally questionable. Employing the paradigm as the agenda setter of the casuistical analysis, we would identify the assumptions or maxims underlying the consensus behind the paradigm case. Among the maxims worthy of investigation could be, for example, whether a targeted killing is acceptable only during a state of war or as an act of self-defence. We would then reflect upon contemporary cases of targeted killing. Given the circumstances of those cases we might want to consider whether to adapt, or even replace, the ruling maxims. Taking St Thomas as our partner in conversation, we might consider, for 187

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example, whether we want to allow for a duly limited punitive use of force against terrorists besides the just cause of self-defence. By carrying out such a type of casuistry we would stay true to both the historical nature of the just war by engaging the history of moral argument as well as to the tradition’s inherently practical pedigree. The lockkeeper function of revisionists in this undertaking would be to scrutinise our analysis for logical incoherence. This undertaking starts with questioning our choice of the paradigm case. For example, revisionists might object to the assertion that our paradigm constitutes something close to a moral consensus for the policy of targeted killing. Generally speaking, the criteria for our selection of the paradigm case provide a target for analytical philosophical inquiry. As for casuistry, the paradigm case sets the agenda of analysis and it must capture the essence of the issue under consideration. Avoiding the excesses of deduction and induction in finding the right paradigm can be helped by the sort of abstract inquiry revisionists provide. For example, if we stick with the idea that jus ad vim must determine who is liable to be a targeted killing based on a moral culpability account, analytical philosophers might question this assertion. Although such a culpability account may have the default position of capture over killing, it would likely be less willing to accept the risk that soldiers must take when carrying out a capture operation of being harmed, especially if the target has actively tried to escape prosecution. Revisionists would likely object to this retributive rationale, arguing for their strict self-defence-based moral liability account instead. As McMahan argues vis-à-vis the policy of targeted killing: Retribution can justify the killing only of those who have already engaged in terrorism and, it might be thought, does so even when killing them would do nothing to protect innocent people. If pure retributionism were our goal, our means would therefore have to be to capture suspected terrorists and try them in court. Only then might we be justified in punishing those found guilty in accordance with their desert. (McMahan 2012b: 136)

Consequently, revisionists might question the authority of our paradigm case by seeking to demonstrate that means other than targeted killing, such as, for example, capture operations, are necessary 188

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conditions for jus ad vim. Furthermore, the revisionist questioning could be directed at our verdict. Again, they could try to demonstrate instances where our analysis becomes excessively deductive or inductive. This would hopefully trigger the advance of moral debate about the real-world development of an increased employment of small-scale uses of force. As through an engagement with our argument, the revisionists, at least indirectly, have to engage St Thomas’s moral argument as well, they can overcome their ahistorical shortcoming pointed out above. In addition, as our argument is inherently practical, the revisionists’ objections, in case they can credibly contradict our assumptions, become practical, too. Finally, it should be noted that a Thomistic casuistry is only one of possibly multiple pathways toward a better understanding of the use of force short of war. While we argue that engaging with jus ad vim through Aquinas is the best way to assess the morality of targeted killing in state against non-state conflict, we do not rule out different points of departure. After all, one of the characteristics of casuistry is the acknowledgement that there can be more than one defensible solution to a given moral issue. To provide a concrete illustration, Brunstetter’s jus ad vim, which also considers inter-national uses of force, could be looked at through a Vattelian casuistry as, in contrast to the contemporary conflict between the West and jihadist terrorism, it can be much more difficult to assess whose side is just in conflicts between states. In fact, that was the reason why, as we saw above, Francisco de Vitoria elaborated on Aquinas, adding the idea of ‘simultaneous ostensible justice’. This basic idea was then expanded by Vattel to argue for the symmetry thesis which underpins the logical separation between the jus ad bellum and jus in bello. Given that Brunstetter seeks to ground his work in the just war tradition and has already employed casuistical elements in his work on jus ad vim, his argument may be enriched by employing a Vattelian casuistry, a casuistry which could then be tested rigorously by revisionists.9

Conclusion Writing in Ethics & International Affairs, O’Driscoll pronounced his doubts that the historical and analytical approaches to just war are incompatible and encouraged scholars ‘to think a little 189

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deeper’ about this ostensible cul-de-sac. Hopefully, such reassessment, he suggested, would lead to a reconsideration of ‘what it means to think ethically about war and how we should engage this task’ (O’Driscoll 2013: 64). In this chapter, we hope to have made a modest contribution in this endeavour. To us it seems that the recapture of casuistry, preferably built around the thought of St Thomas, is the best way of ‘doing’ just war theory. In order to avoid the abuses of casuistry, however, the debate about the morality of war needs an interlocutor that continuously and rigorously questions the casuists’ assumptions. This lockkeeper role, we hope to have credibly demonstrated, is a task that analytical philosophers are uniquely positioned to take on. Although questionable as a distinct moral framework, jus ad vim can contribute to a better understanding of the established jus ad bellum in the wake of a contemporary increase in small-scale employments of force. Having said that, however, the collaboration of the historical and analytical approaches should go beyond jus ad vim. We see no reason why it cannot be extended to the other moral issues arising from actual military conduct.

Notes 1. The authors wish to thank Daniel Brunstetter, Peter Stirk and John Williams for their helpful comments on earlier drafts of this chapter. 2. Positive judgments on jus ad vim include, for example: Brunstetter and Braun (2013); Brunstetter and Emery (2016); Ford (2013); negative judgments include, for example: Coady (2013); Enemark (2014); Plaw and Colon (2015). 3. Email correspondence between Brunstetter and Christian Braun, 17 October 2017. 4. See, for example: Brunstetter and O’Driscoll (2017). 5. See: Reichberg (2013). 6. For a similar narrow reading of jus ad vim imagined as targeted killing see Ford (2013). 7. For example, Frowe, in her jus ad vim article, only lists the criteria of ‘just cause, proportionality, last resort, legitimate authority, and a reasonable prospect of success by legitimate means’ as constituting the jus ad bellum (Frowe 2016: 117–18). 8. See, for example: Cole (1999); Gorman (2010); Reichberg (2017).

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The Question of How to do Just War Theory 9. For casuistic elements in Brunstetter’s work on jus ad vim see the article he wrote with John Emery (Brunstetter and Emery 2016).

References Boyle, Joseph (2006), ‘Just and Unjust Wars: Casuistry and the Boundaries of the Moral World’, Ethics & International Affairs, 11: 1, 83–98. Brown, Chris (2018), ‘Michael Walzer (1935-present)’, in Daniel R. Brunstetter and Cian O’Driscoll (eds), Just War Thinkers. From Cicero to the 21st Century, Abingdon: Routledge, pp. 205–15. Brunstetter, Daniel R. (2016), ‘Jus ad vim: A Rejoinder to Helen Frowe’, Ethics & International Affairs, 30: 1, 131–6. Brunstetter, Daniel R. and Megan Braun (2013), ‘From Jus ad bellum to Jus ad vim: Recalibrating Our Understanding of the Moral Use of Force’, Ethics & International Affairs, 27: 1, 87–106. Brunstetter, Daniel R. and John Emery (2016), ‘Restricting the Preventive Use of Force: Drones, the Struggle against Non-State Actors, and Jus ad vim’, in Kerstin Fisk and Jennifer M. Ramos (eds), Preventive Force: Drones, Targeted Killing and the Transformation of Contemporary Warfare, New York: New York University Press, pp. 257–82. Brunstetter, Daniel R. and Cian O’Driscoll (2017), ‘Introduction: An Intimation of Possibilities’, in Daniel R. Brunstetter and Cian O’Driscoll (eds), Just War Thinkers. From Cicero to the 21st Century, Abingdon: Routledge, pp. 1–7. Clark, Ian (2017), ‘Taking “Justness” Seriously in Just War: Who Are the “Miserable Comforters” Now?’, International Affairs, 93: 2, 327–41. Coady, C. A. J. (2013), ‘Preventive Violence: War, Terrorism, and Humanitarian Intervention’, in Deen K. Chatterjee (ed.), The Ethics of Preventive War, Cambridge: Cambridge University Press, pp. 189–213. Coates, A. J. [1997] (2016), The Ethics of War, Manchester: Manchester University Press. Cole, Darrell (1999), ‘Thomas Aquinas on Virtuous Warfare’, Journal of Religious Ethics, 27: 1, 57–80. Cox, Rory (2018), ‘Gratian (Circa 12th Century)’, in Daniel R. Brunstetter and Cian O’Driscoll (eds), Just War Thinkers. From Cicero to the 21st Century, Abingdon: Routledge, pp. 34–49. Enemark, Christian (2014), ‘Drones, Risk and Perpetual Force’, Ethics & International Affairs, 28: 3, 365–81. Ford, Brandt S. (2013), ‘Jus ad vim and the Just Use of Lethal Force Short of War’, in Fritz Allhoff, Nicholas Evans and Adam Henschke

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Force Short of War in Modern Conflict (eds), Routledge Handbook of Ethics and War, Abingdon: Routledge, pp. 63–75. Frowe, Helen (2014), Defensive Killing, Oxford: Oxford University Press. Frowe, Helen (2016), ‘On the Redundancy of Jus ad vim: A Response to Daniel Brunstetter and Megan Braun’, Ethics & International Affairs, 30: 1, 117–29. Gorman, Ryan R. (2010), ‘War and the Virtues in Aquinas’s Ethical Thought’, Journal of Military Ethics, 9: 3, 245–61. Johnson, James Turner (1975), Ideology, Reason and Limitation of War, Princeton: Princeton University Press. Johnson, James Turner (1995), ‘Just War Tradition and Low-Intensity Conflict’, International Law Studies, 67: 1, 147–69. Johnson, James Turner (1999), Morality and Contemporary Warfare, New Haven: Yale University Press. Johnson, James Turner (2014), Sovereignty. Moral and Historical Perspectives, Washington, DC: Georgetown University Press. Jonsen, Albert R. (1991), ‘Casuistry as Methodology in Clinical Ethics’, Theoretical Medicine, 12: 4, 295–307. Jonsen, Albert R. (2005), ‘Practical Reasoning and Moral Casuistry’, in William Schweiker (ed.), The Blackwell Companion to Religious Ethics, Oxford: Blackwell Publishing, pp. 53–60. Jonsen, Albert R. and Stephen Toulmin (1988), The Abuse of Casuistry. A History of Moral Reasoning, Berkeley and Los Angeles: University of California Press. Lazar, Seth (2017), ‘Evaluating the Revisionist Critique of Just War Theory’, Daedalus, 146: 1, 113–24. Lucas, George (2005), ‘Defense or Offense? The Two Streams of Just War Tradition’, in Peter A. French and Jason A. Short (eds), War and Border Crossings: Ethics when Cultures Clash, Lanham: Rowman & Littlefield, pp. 45–58. McMahan, Jeff (2004), ‘The Ethics of Killing in War’, Ethics, 114: 4, 693–733. McMahan, Jeff (2009), Killing in War, Oxford: Oxford University Press. McMahan, Jeff (2012a), ‘Rethinking the “Just War,” Part 1’, The New York Times, 11 November, (last accessed 3 August 2018). McMahan, Jeff (2012b), ‘Targeted Killing: Murder, Combat or Law Enforcement?’, in Claire Finkelstein, Jens David Ohlin and Andrew Altman (eds), Targeted Killings: Law and Morality in an Asymmetrical World, Oxford: Oxford University Press, pp. 135–55. Murphy, James Bernard (2012), ‘Suárez, Aquinas, and the Just War: Self Defense or Punishment?’, in Heinz-Gerhard Justenhoven and William

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The Question of How to do Just War Theory A. Barbieri (eds), From Just War to Modern Peace Ethics, Berlin: De Gruyter, pp. 175–96. Nardin, Terry (1992) ‘Ethical Traditions in International Affairs’, in Terry Nardin and David R. Mapel (eds), Traditions of International Ethics, Cambridge: Cambridge University Press, pp. 1–22. O’Driscoll, Cian (2008), Renegotiation of the Just War Tradition and the Right to War in the Twenty-First Century, New York: Palgrave MacMillan. O’Driscoll, Cian (2013), ‘Divisions within the Ranks? The Just War Tradition and the Use and Abuse of History’, Ethics & International Affairs, 27: 1, 47–65. Plaw, Avery and Carlos R. Colon (2015), ‘Correcting the Record: Civilians, Proportionality, and the Jus ad vim’, in Steven J. Barela (ed.), Legitimacy and Drones. Investigating the Legality, Morality and Efficacy of UCAVs, New York: Routledge, pp. 163–90. Reichberg, Gregory M. (2013), ‘The Moral Equality of Combatants – A Doctrine in Classical Just War Theory? A Response to Graham Parsons’, Journal of Military Ethics, 12: 2, 181–94. Reichberg, Gregory M. (2017), Thomas Aquinas on War and Peace, Cambridge: Cambridge University Press. Reichberg, Gregory M. (2018), ‘Historiography of Just War Theory’, in Seth Lazar and Helen Frowe (eds), The Oxford Handbook of Ethics of War, New York: Oxford University Press, pp. 59–79. Rengger, Nicholas (2005), ‘The Judgment of War: On the Idea of Legitimate Force in World Politics’, Review of International Studies, 31: 1, 143–61. Strong, Carson (2000), ‘Specified Principlism: What is It, and Does It Really Resolve Cases Better than Casuistry?’, Journal of Medicine and Philosophy, 25: 3, 323–41. Vaha, Milla Emilia (2013), ‘The Ethics of War, Innocence, and Hard Cases: A Call for the Middle Ground’, in Cornelia Navari (ed.), Ethical Reasoning in International Affairs. Arguments from the Middle Ground, Basingstoke: Palgrave Macmillan, pp. 182–202. Walzer, Michael [1977] (2006a), Just and Unjust Wars: A Moral Argument with Historical Illustrations, New York: Basic Books. Walzer, Michael [1977] (2015), Just and Unjust Wars: A Moral Argument with Historical Illustrations, New York: Basic Books. Walzer, Michael (2006b), ‘Terrorism and Just War’, Philosophia, 34: 1, 3–12. Walzer, Michael (2007), ‘On Fighting Terrorism Justly’, International Relations, 21: 4, 480–4.

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10 On the Redundancy of Jus ad vim: A Response to Daniel Brunstetter and Megan Braun1

Helen Frowe

Writing in this journal in 2013, Daniel Brunstetter and Megan Braun have suggested that some forms of interstate violence – in particular, uses of force that fall short of full-scale war – cannot be judged by the principles that are commonly used to evaluate war (Brunstetter and Braun 2013; Braun and Brunstetter 2013). They argue that such uses of force should instead be evaluated with reference to a distinctive set of principles that, following Michael Walzer, they call jus ad vim (Walzer 1977).2 In this chapter I argue that such a proposed set of principles is redundant and that the jus ad vim project stems largely from an implausible understanding of the principles of jus ad bellum. I begin by outlining Brunstetter and Braun’s arguments in favour of jus ad vim. I then go on to show that each of these arguments fails and that, properly understood, the traditional principles of jus ad bellum do the necessary work in restricting and permitting force. I conclude by considering Brunstetter and Braun’s claims about the implications of jus ad vim for the use of drones, arguing that, contra Brunstetter and Braun, jus ad vim does not better capture the harms and goods relevant to uses of limited force and does not better adhere to the requirement of discrimination.

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The argument for jus ad vim Brunstetter and Braun (hereafter also referred to as ‘the authors’) distinguish between forceful measures employed as part of war and forceful measures ‘short of war’. Specifically, they argue that forceful measures short of war, such as the Central Intelligence Agency’s (CIA’s) drone use in Pakistan, cannot be properly evaluated using the jus ad bellum principles familiar from traditional just war theory – that is, just cause, proportionality, last resort, legitimate authority and a reasonable prospect of success by legitimate means.3 Rather, they propose a new, additional set of principles – jus ad vim or ‘justice before force’ – to govern these measures that fall short of war. Jus ad vim allegedly evaluates the gap between domestic law enforcement and war, and is described as a ‘recalibration’ of jus ad bellum principles, plus a novel principle concerning the probability of escalation. By ‘recalibration’, the authors mean that we might use the same notions as we employ in jus ad bellum – just cause and proportionality, for example – but apply them differently in the context of jus ad vim. Brunstetter and Braun describe jus ad vim as in some respects ‘more permissive’ than jus ad bellum (Brunstetter and Braun 2013: 96). While jus ad vim retains the ad bellum position that self- and other-defence are the only just causes for force, it employs a looser understanding of ‘defence’: This means that there are more cases in which injuria justifies some turn to force, but not necessarily war. Within the context of jus ad vim, a state has just cause to use measures short of war when responding to injuria against its interests or citizens. This includes responding to terrorist bombings, attacks on embassies or military installations and the kidnapping of citizens. These are acts of aggression that justify the right to a forceful response . . . If a state that has WMD [weapons of mass destruction] is on the brink of collapsing into a failed state, or if a state is about to use such weapons on its own population, then jus ad vim acts are legitimate. (Brunstetter and Braun 2013: 96)

The authors also suggest that jus ad vim has a ‘more favourable proportionality calculus’ than jus ad bellum. Since it admits of a broader range of causes, there is a broader range of goods that can be allowed to weigh against the harms caused by using force. 198

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However, in terms of the measures it permits, jus ad vim is more restrictive than jus ad bellum, since it sanctions only the use of measures short of war. Brunstetter and Braun stress that jus ad vim is not simply tantamount to the requirement of last resort: the claim is not that one must use measures short of war before one can justify resorting to war. Rather, jus ad vim ’should serve as an alternative set of options to the large quantum of force associated with war. This stems from the essence of jus ad vim – its advantage in avoiding the unpredictable and widespread destructive consequences of war’ (Brunstetter and Braun 2013: 97). With this in mind, the success of ad vim measures is determined by whether they do in fact avoid war. This is why the authors suggest a new principle for jus ad vim that they say is not included in jus ad bellum: the probability of escalation, ‘defined as the elevation of hostilities to war’ (Brunstetter and Braun 2013: 99). If it is likely that the use of measures short of war will trigger an actual war, ‘one could argue that such actions are not justifiable and must be subject to the stricter jus ad bellum regime’ (Brunstetter and Braun 2013: 99). They suggest that the category of jus ad vim ‘provides both analytical clarity and a more nuanced appreciation of the potential ethical pitfalls of drone strikes’ (Braun and Brunstetter 2013: 306). It might be unclear why Brunstetter and Braun are taking jus ad bellum to be the relevant set of comparison principles, rather than jus in bello. Ad bellum proportionality is about how much harm one is permitted to do to achieve the just cause of the war, but it is not sensitive to the kinds of weapons one will use to achieve that cause. Imagine, for instance, that it would be proportionate to some just cause to kill and seriously injure 600 people, destroy a thousand buildings and cause the concomitant disruption of civilian life. Clearly, this limit holds irrespective of how one will cause those harms. However, I think the authors’ reasoning must be that there are cases in which only drones will keep a military action within those limits and so it is specifically the use of drones that enables the action to satisfy ad bellum proportionality – that is, the resort to force. Note, though, that the use of drones will not affect what it is ad bellum proportionate to do, so much as determine whether one can fight within the limits of what has been independently judged to be proportionate. I do not think this affects the 199

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general argument I am making here, which is that the proposed category of jus ad vim fails on two counts. First, it is badly motivated: the apparent shortcomings of jus ad bellum that Brunstetter and Braun identify as creating a need for jus ad vim are merely apparent. Second, the apparent advantages of jus ad vim for evaluating drones strikes are similarly illusory.

The (alleged) failings of jus ad bellum Judging Jus ad bellum Brunstetter and Braun interpret the jus ad bellum conditions as a one-off judgment, made at the outset of a war. For example, they say that if the drone strikes in Pakistan are part of an ongoing war against the Taliban, ‘the criteria of jus ad bellum would presumably already have been satisfied, with only the jus in bello rules applying’; and later, ‘whereas in war, principles such as just cause and last resort need only be satisfied at the outset of a conflict, jus ad vim requires that they be continually reassessed in advance of each use of force’ (Braun and Brunstetter 2013: 317). They also approvingly cite James Pattison’s claim that the just war tradition ‘lacks the conceptual tools to consider the morality of an intervention that was permissible when it was launched but that later becomes morally problematic’ (Pattison as cited in Brunstetter and Braun 2013: 99).4 But all these claims are mistaken, at least according to any plausible account of jus ad bellum. Meeting the conditions of jus ad bellum is not a single judgment made before the start of a war, but rather an ongoing judgment that must be made throughout the war.5 We can see this most clearly with respect to the first condition that the authors mention, namely, just cause. One may not continue to fight a war after its just cause has been secured – not least because in the absence of just cause, no offensive can be militarily necessary for securing the just cause and thus any fighting is impermissible. But the other ad bellum conditions must also be satisfied throughout the war. If, for example, it becomes apparent during the course of a war that one has no reasonable prospect of success, one may not continue to fight. Nor may one continue to fight if war has become 200

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unnecessary – if, say, the aggressor offers terms of peace that will secure the just cause. The same is true of a war that becomes disproportionate to the just cause. Imagine that an invading force tries to take control of a sparsely occupied piece of our territory. Our evidence suggests that the retention of the land will cost us around 300 combatant lives and cause serious collateral harms to 300 innocent people. Say that this is at the limits of what would be proportionate for retaining the land, but it is proportionate and so we begin a defensive war to repel the invasion. But once the war begins, we realise that the aggressors have been secretly developing drones that enable them to drop bombs on our combatants without endangering their own troops. In light of this new evidence, we realise that the only way to retain our land will be to mount a ground and air offensive of the invading nation’s own territory, taking out the military bases from where they operate the drones. We estimate that the cost of achieving this will be around 2,000 combatant deaths, plus serious collateral harms to 2,000 innocent people on both sides, along with the concomitant disruption of civilian life in both countries. This is disproportionate to the just cause – that is, at the bar of the ad bellum conditions – and thus our war is ad bellum unjust and we may not continue to pursue it.6 With this better understanding of jus ad bellum in hand, we can see that Brunstetter and Braun are mistaken to think that jus ad vim differs from jus ad bellum by requiring us to continually reassess our use of force. Properly understood, jus ad bellum also requires this continual reassessment.

Escalation Brunstetter and Braun are correct that when we are considering using force we ought to take into account the risk that doing so might escalate hostilities. It is implausible, however, to think that this is a new principle absent from jus ad bellum. Considerations of escalation come under the remit of the proportionality requirement. As David Rodin has argued, we are morally responsible not only for harms that we directly cause but also for harms that we foresee we will trigger others to cause (Rodin 2014). In other work, I have referred to these as ‘mediated harms’ to capture the fact that they are harms that the agent triggers, but they are mediated through the 201

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(wrongful) agency of someone else (Frowe 2014, 2015). Consider the following examples of Grenade and Provoke: GRENADE: Bully wants to painfully pinch Victim’s arm. Victim can dissuade him from doing so by throwing a small object at Bully that will slightly wind him. However, the only small object Victim has is a grenade. When the grenade deflects off Bully, it will detonate next to innocent Friend, killing her. PROVOKE: Bully wants to painfully pinch Victim’s arm. Victim knows that if he resists, Bully will become so enraged that he will kill innocent Friend.

It is clearly impermissible for Victim to defend himself in Grenade. This is a standard case of causing disproportionate harm, because the good that Victim hopes to achieve is greatly outweighed by the harms he foresees his defence will cause. It is also clearly impermissible for Victim to defend himself in Provoke. Here, too, his defence is disproportionate, because here too the good that Victim hopes to secure is greatly outweighed by the harm he foresees his defence will cause to Friend. Rodin and I agree that there are differences between Provoke and Grenade. When the foreseen harms of defence are mediated through someone else’s agency, as in Provoke, they are heavily discounted in the defender’s proportionality calculation. They do not count as much as harms that Victim will directly inflict, as in Grenade. But mediated harms do still matter for proportionality and when there is great disparity between the good to be secured and the harm one foresees, mediated harms can make defence impermissible.7 If these foreseen harms count toward making defence disproportionate (and thus impermissible), then states thinking of using defensive force must, as Brunstetter and Braun argue, consider how likely using force is to escalate a situation. But we can see now that to make this claim is not to add a new governing principle to the use of measures short of war, giving us something distinctive about jus ad vim that is missing in jus ad bellum. Rather, this consideration is part of the proportionality requirement that obtains across the board: it matters for individual self-defence, as in Provoke and it matters for national defence – regardless of whether the force employed counts as part of war.

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I think that jus ad vim, much like traditional collectivist approaches to war, places unwarranted weight on whether something counts as war. The foregoing discussion of escalation is a case in point. Should our concern really be whether measures short of war escalate into war? Or whether they escalate into more serious – and disproportionate – uses of force? It seems to me that what matters is whether we predict that our use of force will cause a situation to escalate until it causes harm disproportionate to the just cause. It does not matter whether this means that we have escalated to a state of war. It would be impermissible to engage in defence if one predicted it would escalate to disproportionate harms even if the types of measures involved remained short of war. Of course, if by war we mean ‘very widespread and serious harming’, it is obviously worse if things escalate to that point rather than, say, to ten more drone strikes than are proportionate to securing the just cause. Nonetheless, both are impermissible and, pertinent to my argument here, both are prohibited by a single proportionality condition that governs the use of force. Rejecting the significance of war also circumvents a difficulty that the authors discuss at some length, but do not resolve – namely, how to determine whether something counts as a war (Parry 2018). This difficulty of course applies not only to proponents of jus ad vim but also to those writers, such as Michael Walzer and Henry Shue, who defend the view that war is morally distinctive (Walzer 1977: 127; Shue 2008). Having moral permissions that obtain only in war provides various perverse incentives for fighters, especially if scale is a factor in determining what counts as war. For example, limiting one’s destruction to what is necessary to achieve one’s end might keep the conflict below the threshold, thereby excluding one’s fighters from combatant privileges. Increasing the scale of the conflict, in contrast, could get it over the threshold to count as war, even if doing so is not necessary or proportionate for achieving one’s end. Of course, such a war would be unjust. But for those who tend to view war as morally distinctive, this would not prevent the fighters from enjoying special permissions to do violence. Denying that violence becomes more easily justifiable during war removes these kinds of incentives and also solves the problem of deciding whether a use of force should be judged by ad vim or ad bellum principles.

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Implications for Drone Use Brunstetter and Braun allege two important implications of jus ad vim proportionality for the CIA’s use of drones outside war. The first is that because the just cause will be less important in cases where war is not justified (and thus any harms caused in pursuing the cause are governed by jus ad vim), less collateral damage will be permitted by the ad vim proportionality conditions than would be permitted under the ad bellum proportionality requirement: ‘Insofar as the military advantage is smaller, the collateral damage is less justifiable, which means the threshold of acceptable excess destruction – the killing of civilians – is lower than what is allowed in war’ (Braun and Brunstetter 2013: 318). The second alleged implication is that ad vim’s ‘much more restrictive’ interpretation of proportionality means that when using drones, we must ‘be concerned not only with the loss of civilian life but also the more subtle harms including property destruction, post-traumatic stress disorder, and social disruption’ (Braun and Brunstetter 2013: 319). Both these alleged advantages of jus ad vim are again undercut by a better understanding of jus ad bellum proportionality. The reason why the ‘threshold of acceptable excess destruction’ is lower ‘than what is allowed in war’ is not that we are using measures short of war and therefore our actions are governed by a different proportionality calculation. Rather, it is that, precisely as the authors say, the just cause being pursued is (by hypothesis) less important and thus warrants less collateral harm. In other words, it is just ordinary proportionality determining what may be done. It does not matter whether it is ad bellum or ad vim; all that matters is the relevant good and the relevant harm. Noticing this helps to explain why the claim about escalation quoted above is confused in two ways. Brunstetter and Braun suggest that when a use of force is likely to cause a situation to escalate to war, ‘such actions are not justifiable, and must be subject to the stricter jus ad bellum regime’ (Brunstetter and Braun 2013: 99). But that an action will cause escalation does not show that it is unjustifiable. All it shows is that, according to the authors, it cannot be justified by the principles of jus ad vim. But nothing follows from that for the justifiability of using force. This is like observing that an account of proportionate punishment does

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not sanction killing a would-be rapist in self-defence. That might be true, because accounts of punishment neither sanction nor prohibit defence. But it tells us nothing about whether killing to avert a rape is justifiable, only that accounts of punishment cannot judge the permissibility of defence – a conclusion that is not philosophically interesting. Furthermore, if what I have argued thus far is correct, moving from jus ad vim to jus ad bellum is not going to involve applying ‘stricter’ proportionality conditions. The increased force will be unjustified if the good sought does not warrant (the risk of) escalating beyond a certain amount of harm. This judgment is unaffected by whether the force to which we might escalate counts as war. I think this also speaks to the idea that jus ad vim expands the range of just causes compared to jus ad bellum. One can see how this might seem true if, for example, one begins with something like Jeff McMahan’s claim that: [J]ust causes for war are limited to the prevention or correction of wrongs that are serious enough to make the perpetrators liable to be killed or maimed . . . The only ends that weigh against the bad effects of war in the proportionality calculation are those specified by the just cause or causes for war. (McMahan 2005: 11, 19)

Brunstetter and Braun seem to be saying that, unlike in the ad bellum proportionality calculation, jus ad vim proportionality includes other ends – ends that would not justify war. But this is not a different interpretation of proportionality. If what McMahan says is right, it is still true of ad vim that only those goods that warrant the harms inflicted will be able to weigh against those harms. Insofar as jus ad vim is dealing with measures that kill or maim, it too can include only those ends that warrant killing or maiming. McMahan’s claim is not that there is something special about waging war per se, which means that only certain ends are relevant to proportionality. His claim is rather that only those ends that warrant force are relevant goods for the purposes of judging the proportionality of force. So jus ad vim is not broadening the range of ends that may be pursued by force. It is simply suggesting that some ends do not warrant, say, vast amounts of killing or destruction, but could warrant some killing or some destruction.

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Relevant Harms We can, contra Brunstetter and Braun, capture more than the mere loss of life in the ad bellum proportionality calculation. Ad bellum proportionality (and in bello proportionality) is sensitive to a range of goods: it covers damage to infrastructure, damage to civilian property, environmental damage, and damage to cultural buildings and objects – and these are just the things listed by the Hague and Geneva Conventions.8 It seems very plausible that as a matter of morality (that is, beyond what might be required by legal conventions), proportionality is also sensitive to psychological harms and the general disrupting of civilian life. At any rate, any argument for including them in proportionality calculations for uses of force short of war will speak equally to their relevance for harming during war. Of course, these harms might not weigh very heavily when one is dealing with just causes for war, because (by assumption) just causes for war are terribly important. Social disruption is not irrelevant to proportionality, on this view, but it is not going to count for much compared to stopping a genocide, violent invasion or wave of terrorist attacks and so on. When the just cause for using force is less important, however, such harms will be more able to counteract the good that can be achieved by inflicting them. But this is not to invoke some new, ‘much more restrictive’ interpretation of proportionality. It is just plain old proportionality, according to which securing very important goods warrants foreseeably inflicting more serious harm; and securing less important goods can be prohibited by the foreseeable infliction of relatively minor harms, precisely as the authors envisage ad vim proportionality to work. We can see this point even more clearly by considering the range of just causes that might justify war. It is not as if, once one has a just cause for war, any harm one causes in pursuit of that cause is justified. Rather, we still have a separate proportionality condition that must also be satisfied if the war is to be just, because even wrongs that meet the level of justifying war can vary in their magnitude. One may do more to prevent genocide than one can to prevent the theft of resources, or the damming of an important river, or the occupation of a small piece of land. (If we did not think that this is the case, there would be no ad bellum proportionality condition at all.) But this does not mean that there is one

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proportionality condition that applies to genocide and another that applies to theft and another that applies to the damming of rivers. There is just a single proportionality condition that requires us (to put it simply but, I believe, correctly) to weigh the good we expect to secure against the harms we expect to cause in a range of situations. The authors’ jus ad vim proportionality adds nothing here: the proportionality calculation for using force short of war is no more permissive, favourable, or restrictive than any other proportionality calculation, because there are no other proportionality calculations. I suspect that part of this confusion about the harms that are relevant to ad bellum proportionality comes from a conflation of what policymakers and practitioners actually think about when deciding whether to use force and what the moral principles of jus ad bellum enjoin them to think about. It may be true that, in practice, those making proportionality decisions pay attention only to the killing (and serious harming) of civilians. This could be because they have already decided that if an objective warrants killing anyone it also warrants a fairly generous amount of other kinds of harm – that is, they take the proportionality of those harms to be entailed by the proportionality of incidentally killing even one innocent person. If so, it would usually be the proportionality only of killing that merits discussion. This would be a mistaken view of proportionality, I think, but it is a possible and coherent view. Alternatively, it could just be that policymakers and practitioners are mistaken about proportionality in a more fundamental way – that they genuinely do not consider these harms as relevant to proportionality at all. But this, too, is just a mistake and we should not take these mistakes of policymakers and practitioners to reveal some flaw with the ad bellum principles. Philosophically, these failings do not in any way determine the content of the ad bellum principles. And practically, if policymakers and practitioners are not considering these harms when they think about proportionality, simply drawing up another set of principles that (also) tell practitioners to care about non-lethal harms is unlikely to be more successful in getting them to do so. If they ignore these aspects of proportionality in jus ad bellum, we should not expect them to pay attention to these harms when they are packaged as part of jus ad vim.

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Discrimination Brunstetter and Braun also claim that jus ad vim requires stricter adherence to the requirement of discrimination than jus ad bellum: Scholars such as Walzer have argued that one can imagine a sliding scale that allows for violations of jus in bello principles under certain circumstances – notably supreme emergency – as well as the need, when thinking ethically, to distinguish between intended and unintended effects (in other words, about the doctrine of double effect). Sometimes necessity requires, as the argument goes, breaking the rules of non-combatant immunity, while other, less extreme circumstances occasionally result in unforeseen and nefarious consequences that do not outweigh the overall justness of the use of force . . . However, in terms of jus ad vim the advancement of technology should make the consequences of the use of force more predictable, which, coupled with the necessarily limited scope of force, means that there should be no recourse to such moral loopholes. In other words, jus ad vim must maintain stricter adherence to the principle of discrimination than jus ad bellum. (Brunstetter and Braun 2013: 101)

It is not clear exactly what the authors have in mind by ‘unforeseen and nefarious consequences’. The natural reading would be to take this as a reference to collateral damage (if they are unforeseen harms, they are presumably also unintended harms). If they are unintended, however, they do not violate discrimination even if they befall civilians. They might, on an objective account, violate proportionality even if they are unforeseen (or, perhaps, unforeseeable). But to violate discrimination one must be aiming at civilians, not merely harming them. The improved predictability of force could of course limit instances of this kind of disproportionate force, but this would not be a form of greater adherence to discrimination. Moreover, insofar as these more technologically advanced weapons are available in war, they will presumably increase our ability to adhere to proportionality within war as well as outside war. Walzer’s supreme emergency clause is, of course, a challenge to discrimination. Brunstetter and Braun’s thought seems to be that because jus ad vim deals with force short of war, it is not going to encounter situations in which we might contemplate intentionally killing civilians and thus the temptation to violate discrimination will be avoided. But this is to make a mistake about what jus

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ad vim is supposed to govern. It is supposed to govern forceful measures short of war – that is, a particular range of means of pursuing goals. It does not restrict the range of goals that may be thus pursued. I suspect this mistake arises because the authors have assumed that if there is a cause so important that it warrants targeting civilians, that cause would warrant war and so we move beyond jus ad vim to jus ad bellum. But we could easily have a cause that would warrant war, the securing of which requires only measures short of war and that must therefore (on Brunstetter and Braun’s account) be governed by jus ad vim (assuming that using force does not seem likely to cause escalation). If we must use a single drone to target a single civilian in order to prevent some kind of humanitarian catastrophe, the mere fact that all-out war (if it were necessary) would be justified to achieve that same end does not mean that measures short of war are suddenly to be governed under jus ad bellum. Given this, jus ad vim is really no better than jus ad bellum when it comes to supreme emergencies and adhering to discrimination.

Conclusion Prima facie, the proposal to develop specific principles to deal with instances of defensive force that lie between the measures typical of law enforcement and the measures typical of war seems an attractive one. But its appeal is illusory: the putative differences between jus ad vim and jus ad bellum that supposedly warrant a new category of principles rest on an implausible understanding of jus ad bellum. Satisfying the jus ad bellum conditions is not a one-off judgment. Rather, it requires continuous assessment throughout a war. Requiring agents to consider the risks of escalation is not a distinctive, independent element of jus ad vim, but rather part of any proportionality condition, since we are responsible not only for the harms that we directly cause but also for the harms that we foresee our defence will trigger others to cause. Ad bellum proportionality is also sensitive to the range of harms that are to be included in the ad vim proportionality calculation. How heavily these harms will count against causes for war remains open, but that is because causes for war are very important, not 209

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because ad bellum proportionality functions differently from ad vim proportionality. The alleged implications of using jus ad vim to assess the CIA’s drone use are not really implications for the permissibility of using drones at all. Ad vim gives us a label for judging measures short of war, but the category lacks any genuine normative role because (1) a use of force that fails ad vim proportionality will also fail ad bellum proportionality, since there is only one proportionality condition and (2) a use of force that exceeds what can be judged by jus ad vim will not thereby be shown to be impermissible, but will simply be judged by jus ad bellum anyway. Thus, the proposed category of jus ad vim is redundant.

Notes 1. This chapter was originally published in: Frowe, Helen (2016), ‘On the Redundancy of Jus ad vim: A Response to Daniel Brunstetter and Megan Braun’, Ethics & International Affairs, 30: 1, 117–29. 2. I focus here on the most developed account of jus ad vim, as defended by Brunstetter and Braun. Other proponents of jus ad vim include Ford (2013), and Jai Galloitt. See also Enemark (2014). 3. The actual phrase they use is ‘fails to offer sufficient leverage’ (Brunstetter and Braun 2013: 88) for assessing jus ad vim actions, but this is a bit unhappy. It makes it sound as if they are trying to shape the principles so that they deliver some (independently determined) ‘right’ result in certain cases. I take my phrasing to be more neutral. 4. Pattison tells me that Brunstetter and Braun have misunderstood his view and that he does not think jus ad bellum a one-off judgment. However, all that matters for my purposes here is that Brunstetter and Braun clearly think Pattison would be correct to view jus ad bellum as a one-off judgment. 5. See, for example: Frowe 2011: 54; Fabre 2009: 49, 57; Lazar 2017; Darrel Moellendorf’s work on jus ex bello and David Rodin’s work on jus terminatio, for example: Rodin (2008). 6. There arise here difficult questions about ‘sunk costs’, of course. But the point is that however we judge the proportionality of war, it remains true that if it becomes disproportionate to the just cause, it becomes unjust. 7. However, Rodin argues that when it comes to defensive war, the discount that ordinarily applies to mediated harms is discounted because

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On the Redundancy of Jus ad vim we have a duty of care to our fellow citizens. For an argument that this is a mistake, see Frowe 2014: Chapter 5. 8. On environmental damage, see the Geneva Convention, AP 1, Art. (35) (3) and AP 1, Art. (55) (1) (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977). The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (14 May 1954) (Art. 4.1) enjoins parties ‘to respect cultural property situated within their own territory as well as within the territory of other High Contracting Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility directed against such property’. Art. 4.2 stipulates that the ‘obligations mentioned in paragraph I of the present Article may be waived only in cases where military necessity imperatively requires such a waiver’. Article 50 of the Geneva Convention prohibits ‘extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’.

References Braun, Megan and Daniel R. Brunstetter (2013), ‘Rethinking the Criterion for Assessing CIA-Targeted Killings: Drones, Proportionality and Jus ad vim’, Journal of Military Ethics, 12: 4, 304–24. Brunstetter, Daniel R. and Megan Braun (2013), ‘From Jus ad bellum to Jus ad vim: Recalibrating our Understanding of the Moral Use of Force’, Ethics & International Affairs, 27: 1, 87–106. Enemark, Christian (2014), ‘Drones, Risk and Perpetual Force’, Ethics & International Affairs, 28: 3, 365–81. Fabre, Cécile (2009), ‘Guns, Food and Liability to Attack in War’, Ethics, 120: 1, 36–63. Ford, Brandt S. (2013), ‘Jus ad vim and the Just Use of Lethal ForceShort-of-War’, in Fritz Allhoff, Nicholas Evans and Adam Henschke (eds), Routledge Handbook of Ethics and War, Abingdon: Routledge, pp. 63–75. Frowe, Helen (2011), The Ethics of War and Peace: An Introduction, Abingdon: Routledge. Frowe, Helen (2014), Defensive Killing, New York: Oxford University Press

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Force Short of War in Modern Conflict Frowe, Helen (2015), ‘Can Reductive Individualists Allow Defense Against Political Aggression?’, in David Sobel, Peter Vallentyne and Steven Wall (eds), Oxford Studies in Political Philosophy, Oxford: Oxford University Press, vol. 1, pp. 173–93. Lazar, Seth (2017) ‘War’s Ending and the Structure of Just War Theory’, in Saba Bazargan and Samuel C. Rickless (eds), The Ethics of War: Essays, Oxford: Oxford University Press, pp. 227–42. McMahan, Jeff (2005), ‘Just Cause for War’, Ethics & International Affairs, 19: 3, 1–21. Parry, Johnathan (2018), ‘Civil War and Revolution’, in Seth Lazar and Helen Frowe (eds), The Oxford Handbook of Ethics of War, New York: Oxford University Press, pp. 315–38. Pattison, James (2011), ‘The Ethics of Humanitarian Intervention in Libya’, Ethics & International Affairs, 25: 3, 1–7. Rodin, David (2008), ‘Two Emerging Issues of Jus post bellum: War Termination and the Liability of Soldiers for the Crime of Aggression’, in Carsten Stahn and Jann Kleffner (eds), Jus post bellum: Toward a Law of Transition from Conflict to Peace, The Hague: T. M. C. Asser, pp. 53–76. Rodin, David (2014), ‘The Myth of National Self-Defence’, in Seth Lazar and Cécile Fabre (eds), The Morality of Defensive War, New York: Oxford University Press. Shue, Henry (2008), ‘Do We Need a “Morality of War”?’ in David Rodin and Henry Shue (eds), Just and Unjust Warriors: The Moral and Legal Status of Soldiers, New York: Oxford University Press, pp. 87–111. Walzer, Michael (1977), Just and Unjust Wars, New York: Basic Books.

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11 Are Novel Jus ad vim Principles Needed to Judge Military Measures Short of War?1

Shawn Kaplan

Just war theorists have recently introduced the category of jus ad vim to join the traditional categories of jus ad bellum and jus in bello. As the ‘just resort to force’, proponents of jus ad vim argue that this category is conceptually distinct from the issues of a just resort to full-scaled war and the just means of fighting war. Since many military engagements today fall short of full-scaled war, the question of what is a just resort to military measures short of war (MMSoW) is a pressing question for both just war theory and international law. At a basic level, what is controversial is whether a distinct set of principles is needed for judging MMSoW or whether the extant principles of jus ad bellum and jus in bello simply need to be interpreted and applied in light of the apparent novelties of MMSoW taken up against either states or non-state actors. One might suspect, however, that this basic controversy is primarily a semantic one. After all, what hangs in the balance of whether one claims the need for a new ethical category like jus ad vim or the need for new interpretations of the traditional jus ad bellum and jus in bello categories? As it turns out, there is more than semantics hanging in the balance. The advocates of jus ad vim view the novelty of this ethical category as important for establishing a distinct alternative to both the war and law enforcement paradigms. These two paradigms are the traditional legal and moral frameworks used to analyse the permissibility of a state’s resort to lethal force.2 The stated hope of jus ad vim advocates is that the principles within this distinct 213

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ethical category will provide a middle paradigm between war and law enforcement for analysing the justice of MMSoW whether used as counterterrorism measures or addressing other security risks (Braun and Brunstetter 2013).3 More specifically, it has been proposed by some (Walzer 2006; Brunstetter and Braun 2013) that a more permissive set of jus ad vim principles is appropriate for assessing MMSoW due to the precision in which such limited force can be deployed – whether by means of drones or other contemporary military technology. To this end, it is important to maintain jus ad vim as a conceptually distinct ethical category that cannot be reduced to either jus ad bellum or jus in bello. If jus ad vim is not a conceptually distinct ethical category, as I shall argue, then this would undermine the arguments for establishing a more permissive set of normative principles to assess MMSoW. Alternatively, if MMSoW are being deployed for the sake of policing efforts, then we must acknowledge that reduced and more precise force does not alter the rights of suspected criminals nor does jus ad vim present some viable middle ground between the paradigms of war and law enforcement. In what follows, I will examine two recent proposals to adopt a more permissive set of jus ad vim principles and I will propose several reasons for being sceptical of this move. These two attempts focus, in turn, upon making a resort to MMSoW more permissible for preventive strikes and defensive force. Both sets of arguments advocating for novel jus ad vim principles are rooted in assumptions from the orthodox ‘legalist paradigm’ of just war theory (Walzer 2000: 51–108), which focuses upon the rights of states to defend their sovereignty and territorial integrity, as opposed to the focus of revisionist just war theorists (Rodin 2005; McMahan 2009; Frowe 2014) upon the rights of individuals to defend themselves and others from unjust threats. Since those who affirm a revisionist account of just war theory reject that war creates a context where the everyday moral rules concerning individual self-defence no longer apply, the arguments from jus ad vim advocates that we need to create yet a third set of moral rules will be a non-starter for them. As opposed to illustrating how these two approaches to theorising about just wars come to opposing conclusions regarding the need for novel jus ad vim principles to assess MMSoW, I primarily aim to show how jus ad vim advocates fail to demonstrate, from the standpoint of the ‘legalist 214

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paradigm’, the need to adopt novel jus ad vim principles that are conceptually distinct from those contained in jus ad bellum and jus in bello.4 Though the introduction of precision technologies used in MMSoW may potentially have an effect on proportionality calculations, they do not in themselves alter the conditions of just cause, proper authority, proportionality, necessity or right intention.5 Even though I argue that jus ad vim does not stand as a paradigm distinct from that of war, I agree that the war paradigm may not always be a perspicuous lens for analysing much recent counterterrorist MMSoW, such as targeted killings. I will conclude by briefly considering why a law enforcement framework comes much closer to highlighting the most salient moral features of these MMSoW and what further work needs to be done to clarify how to assess their justice.6

Preventive force and jus ad vim Michael Walzer first introduced the category of jus ad vim while considering the containment regime endorsed by the United Nations (UN) and enforced by the US against Iraq from 1991 to 2003 (Walzer 2006). In the aftermath of the 1990–1 Gulf War, it was determined that to prevent Iraq from engaging in additional acts of aggression against its neighbours or from targeting its Kurdish population in the north three containment strategies would be enacted: an embargo to prevent the importation of arms, an inspection system to prevent the development of weapons of mass destruction (WMDs) and a ‘no-fly’ zone to prevent Iraq from attacking the Kurds in the north. Walzer equates each with a resort to preventive force short of war but it should be noted that, in this context, force needn’t mean military force.7 While the embargo might use military force to board ships and confiscate contraband arms and the ‘no-fly’ zone certainly required military enforcement, the inspection system was enforced primarily via trade sanctions or coercive diplomacy. However, all three measures relied primarily on the threat of military force, as opposed to actual preventive attacks or strikes. Still, the claims Walzer makes about these broader resorts to ‘force’ also appear to apply to MMSoW: ‘The standard arguments against preventive war don’t apply, it seems to me, to the preventive use of force-short-of-war – since short-of-war means without 215

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war’s unpredictable and often catastrophic consequences’ (Walzer 2006: 106). He suggests that so long as the forceful measures have more predictable and less catastrophic effects, then the arguments against preventive war supposedly don’t hold. This, however, suggests that the arguments against preventive war are fundamentally consequentialist and this is not the case – even within Walzer’s previous writing.8 Walzer (2000: 80) characterises preventive war as using past instances of belligerency as a basis to imagine prospective aggressions. Preventive wars are typically deemed unjust simply because they do not respond to a wrong being committed or which is imminent but a wrong which one imagines likely. In such instances, one lacks a just cause to attack – regardless of whether it is full-scaled war or a MMSoW – since there is no ongoing or imminent aggression to be defended against. However, regardless of his previous stance that preventive wars are unjustified, Walzer proposes that ‘what we might think of as “preventive force” can be justified when we are dealing with a brutal regime that has acted aggressively or murderously in the past and gives us reason to think that it might do so again’ (Walzer 2006: 107). Since the only distinction between preventive war and preventive force drawn by Walzer rests upon the lesser magnitude and greater predictability of the consequence associated with MMSoW, he seemingly conflates proportionality concerns over likely consequences with the existence of a just cause for the preventive use of military force. Just cause for preventive war is doubted not merely for predicted negative consequences but due to the speculative nature by which future threats are identified and targeted.9 Without a threshold of urgency being crossed (such as that posed by an imminent threat), why would possible improvements in proportionality create a just cause for resorting to preventive military force? Even if one is sceptical of the requirement of an imminent threat, my point still stands. In contrast with the orthodox just war prohibition of preventive war, Buchanan and Keohane have argued that preventive force can be justified in the absence of imminent harm or imminent human rights violations (Buchanan and Keohane 2004). When considering a scenario similar to what Walzer describes, where a group with a history of grave human rights violations conspires to carry out future attacks, they propose that even though such a group may not be actively or imminently engaged in harming others 216

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Are Novel Jus ad vim Principles Needed? it is incorrect to say the group has done nothing. It has wrongfully imposed an especially high risk of serious harm on others, through its past actions, its current planning to carry out a lethal attack, and its expression of a willingness to kill non-combatants. (Buchanan and Keohane 2004: 6; emphasis in original)

They justify lethal preventive force when the imposition of dire risk of harm is conjoined with the facts that the future threat is both of a sudden attack and an attack that would inflict massive violations of human rights (Buchanan and Keohane 2004: 7). Given both the suddenness in which the attack may be sprung and the severe degree of harm or rights violation it threatens, a threshold of urgency has been crossed that is required for justifying the preventive resort to force. Though one may debate how convincing this significant revision of the just cause principle is, what is clear is that it requires a threshold of urgency to be passed – even if it is not imminence – and that improved proportionality by means of resort to MMSoW does not in itself help to satisfy the just cause for preventive force.10 Furthermore, in contrast to the jus ad vim advocate’s view, Buchanan and Keohane’s in principle justification for preventive force applies equally to both full-scaled wars as well as MMSoW. Walzer further develops his thoughts on jus ad vim, specifically looking at instances that are unmistakably military measures short of war and not examples of coercive diplomacy (Walzer 2007). It is when states fail, when they lose control of parts of their country or are wracked by civil war, that terrorists find their opportunity. These failures open up crucial in-between spaces. The zones of war and peace are well lit compared to what lies, in darkness, between them. Special Forces act secretly in this space . . . (Walzer, 2007: 482)

Walzer’s assumption appears to be that, in the cases of terrorist groups who find refuge in failing or weak states that cannot police their own territory, the existence of such security threats falls within some practical and moral domain between peacetime policing and war. He suggests that since the MMSoW carried out by special forces (or, more recently, drone strikes) against suspected terrorists or militants fit neither peacetime policing nor full-scale war – where we have moral illumination provided by various rules 217

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– we are in a murkier domain. Do we need, according to Walzer, to develop novel jus ad vim rules in order to cast some light upon these situations? His response is somewhat ambiguous. We should sustain for as long as we can the possibility of abiding by either the rules of peace or the rules of war because we have a pretty clear sense of what these rules are; we know what police and soldiers can and cannot do. (Walzer 2007: 482)

While pointing out the conspicuous absence of rules for this ‘in-between space’ and, hence, our apparent need for developing jus ad vim principles, Walzer suggests that we are better off first using the established rules limiting a resort to lethal force by the police ‘as if we were acting in the zone of peace’ where there is a presumption in favour of the capture and trial of suspects and an intolerance towards harming innocent bystanders (Walzer 2007: 483). However, after an attempted arrest has failed, we ought to act ‘as if we are in the zone of war’ and follow the legalist paradigm’s just war rules that presume all belligerents to be legitimate targets for lethal attack and which excuses unintended but foreseen harms to innocents when these harms are proportionate to the military aims. In some ways, his proposal seems more of a political compromise, as opposed to a moral or principled argument. Since both the policing and war standards are known, it is better to adopt each, in turn, to better protect the innocent who are in no way liable to harms and to have some regulation of the secret acts of special forces – as opposed to none at all. Yet, this focuses exclusively upon whether the in bello protections of innocents appropriate to war are being followed or the more restrictive policing protections of innocents are being followed, not whether there is a right to target these suspects in the first place. Walzer simply assumes that the targets will be militants who pose a ‘general threat’ and that there is not only a right to target them for arrest and then for attack but a general responsibility of lawful states to do so. To assert that there is a general and collective responsibility of states to confront global security threats is not unreasonable. It is also uncontroversial that attempts at collaborative policing ought to be the first avenue by which to confront such security threats. However, Walzer’s position that, once an attempted arrest has failed, a resort to lethal force is justified lacks a supporting argument. What 218

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precisely makes these suspected security threats liable to lethal attack? While anyone who is conspiring to commit a crime (even a violent crime) is liable to arrest and trial, he or she is likely not liable to lethal force unless such force is necessary as a means of stopping an unjust and impending threat.11 The fact that an attempted arrest has failed, or that an arrest is difficult, does not make the resort to a MMSoW have either a just cause or satisfy the condition of necessity. Security threats can and do exist both domestically and internationally without justifying lethal force from either the police or the military. As Jeff McMahan has argued, preventive lethal force can be justified within a law enforcement paradigm when the threat is akin to a person on a violent rampage and lesser force would be ineffective in protecting prospective victims (McMahan 2012: 147). However, suspected terrorists typically do not pose such an impending threat and, thus, there is a failure to satisfy the necessity condition for McMahan. Similarly, pre-emptive lethal force from within the legalist just war paradigm also requires something like an imminent threat. What Walzer’s jus ad vim approach fails to do is establish why some more lax standard for resorting to a preventive MMSoW is justified – or for that matter what the more lax standard should be. Others, inspired by Walzer’s introduction of the jus ad vim category, have attempted to articulate with greater clarity what these more permissive standards ought to be; however, they depart from his focus on preventive force to discuss how jus ad vim can justify a defensive deployment of force.

Defensive force and jus ad vim One such recent attempt comes from Daniel Brunstetter and Megan Braun who argue that the more limited and more predictable consequences of MMSoW allows for a broader conception of defensive force to be justified in contrast to the more restrictive jus ad bellum principles (Brunstetter and Braun 2013). Their stated goal is to construct a viable theory of jus ad vim ‘by recalibrating jus ad bellum criteria and adding a new principle – the probability of escalation’ (Brunstetter and Braun 2013: 88) in light of the more constrained degree of force employed in MMSoW. They argue that such a recalibration is required, since ‘the jus ad bellum framework does not offer sufficient leverage for assessing the jus ad vim actions that have 219

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become the hallmarks of the Obama administration’s approach to combatting terrorism’ (Brunstetter and Braun 2013: 88).12 The term recalibration is somewhat ambiguous. It could suggest a modest tweaking of the jus ad bellum principles so they can be readily applied to both MMSoW and full-scaled war or it could be a more radical restructuring of these principles to produce a conceptually distinct paradigm. The second option appears to be the meaning here insofar as the authors seek a more permissive theory of jus ad vim, especially as concerns just cause: ‘In jus ad vim, defence is interpreted more broadly. This means that there will be more cases in which injuria justifies some turn of force, but not necessarily war’ (Brunstetter and Braun 2013: 96). Before addressing their controversial argument for a more permissive jus ad vim principle of just cause, it is necessary to understand why Brunstetter and Braun believe the justice of recent counterterrorist MMSoW cannot be properly assessed by either jus ad bellum principles or the law enforcement paradigm. Without first establishing how these alternative frameworks are insufficient, the necessity of significantly recalibrating our criteria of just cause will be speculative and unwarranted.

Are Jus ad bellum and Law Enforcement Paradigms Insufficient? Brunstetter and Braun take as their starting point the orthodox ‘legalist paradigm’ of just war theory, as articulated by Michael Walzer (Walzer 2000: 51–108). For the sake of following the logic of their arguments, I will for the time being bracket alternative approaches found in revisionist theories of just war. Central to the legalist paradigm is the assumption that states have the rights to sovereignty and territorial integrity (Walzer, 2000: 51–63). To show the insufficiency of jus ad bellum for assessing MMSoW, Brunstetter and Braun first raise a difficulty for the legalist paradigm which is produced by the rise of non-state agents who pose security threats to states. When non-state terrorist or militant groups operate or find shelter within other states, Brunstetter and Braun ask how can territorial integrity remain inviolable? As noted by the authors, the scepticism over the inviolability of territorial integrity is not specific to addressing security threats from non-state agents. This process began in the 1990s, a decade that saw humanitarian crises in Rwanda and the Balkans challenge the viability of the legalist paradigm. The ensuing debates about the sanctity of territorial

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Whether considering humanitarian crises or the case of weak to failing states that contain security threats in the form of either terrorist groups or unsecured weapons of mass destruction, just war theorists working both within the state-centric legalist paradigm (Walzer 2000: 101–8; Orend 2013: 34–43) and outside it (Tesón 2003; Altman and Wellman 2008) have put forward accounts for when the right to sovereignty is either forfeited or can be overridden. These complications, while important to confront, do not point towards jus ad bellum being insufficient for addressing MMSoW. Furthermore, if territorial integrity isn’t absolutely inviolable (as suggested by these contexts), this does not suggest that this right of the state needn’t be forfeited or overridden in very similar ways for MMSoW as for full-scaled warfare. The degree of force used to address a humanitarian crisis or security threat within a weak or failing state must be both necessary and proportionate and satisfying proportionality may be more likely when resorting to a MMSoW than full-scaled war. However, this does not establish the insufficiency of jus ad bellum principles to assess MMSoW, but quite the opposite. Brunstetter and Braun next raise the point that the ‘zone of combat’ and the ‘zone of peace’ are no longer easily distinguished and, following Walzer, suggest there is now some middle area. While war used to be easily defined as a zone of combat where lethal force was justified (to be distinguished with a zone of peace, where it is not), the struggle against terrorism has created ‘in-between spaces’ of moral uncertainty where force is used on a consistent and limited scale, but war is not declared. (Brunstetter and Braun 2013: 89)

Given the extensive history of long-standing border disputes and, more recently, conflicts with international drug cartels where there certainly is not a ‘zone of peace’ but also no declaration of war, it is far from obvious that such clearly demarcated zones have typically existed in either distant or recent history.13 Regardless of whether current circumstances are truly novel, the authors seem 221

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most concerned with situations where terrorists are located within states that are either incapable or unwilling to deal with the threat posed. Using Walzer again as a touch-point, Brunstetter and Braun state their agreement with him that ‘international policing actions, in conjunction with actions by local authorities, should be tried first’ but they add: If these fail, then the unilateral use of force by the state that feels threatened would become warranted. However, the ethical challenge lies in determining when the threshold separating international policing and unilateral force has been crossed, and what level of force is justified. (Brunstetter and Braun 2013: 89)

Before addressing how Brunstetter and Braun attempt to differentiate jus ad vim from police actions, there is a problematic claim in the above quote wherein unilateral force is said to be warranted by a state feeling threatened, once international policing proved ineffective. Feeling threatened and facing an objectively unjustified threat are two different things and only the latter can conceivably contribute to lethal force being warranted. In addition, though they comment that it isn’t clear when the threshold between police actions and unilateral force is crossed, they don’t clarify the nature of the threshold nor whether it has to do with the nature of the objective threat posed or some other factor, such as a threshold of police ineffectiveness. One thing that is clear is that the authors assume that unilateral force and international policing actions are mutually exclusive. Ideally, with the existence of fully developed international policing institutions or, at least, strong cooperative international policing efforts, this contrast would be appropriate. However, there are both historical models (Kaplan 2013: 241–3) and contemporary accounts of international law enforcement (Tesón 2005) that rest upon decentralised authority which can be unilaterally applied. Simply pointing out that a MMSoW has been unilaterally carried out does not automatically rule out that the law enforcement paradigm is appropriate to describe and analyse the ethics of the situation. In the absence of relevant international law enforcement institutions or cooperation, the validity of unilateral law enforcement cannot be automatically ruled out (Kaplan 2013; Song 2015). 222

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When writing about drone strikes in Pakistan, Braun and Brunstetter make another attempt to distinguish jus ad vim from international law enforcement: Their frequency, the unilateral character of their use (i.e. without the explicit consent of the Pakistani government) and public concerns centered on the extent to which capture, or other nonviolent measures, is really infeasible suggest that drone strikes are not acts of law enforcement. (Braun and Brunstetter 2013: 316)

Though the degree of consent from the Pakistani government for past drone strikes is a disputed matter, we can ask more generally whether a weak state, whose government cannot politically risk appearing to consent to an external power using force to police within its borders, somehow makes the drone strike necessarily something besides a police action? It is not obvious how explicit consent, as opposed to tacit consent or secret agreement, is necessary to make a MMSoW an act of law enforcement. Of course, express consent may make a legal and, perhaps, moral justification more likely for such MMSoW. Similarly, if it were more obvious that capture or other non-violent measures are not feasible, then justification would again be more likely. However, it seems that Brunstetter and Braun fail to consider that the frequent drone strikes in Pakistan may be akin to policing actions that aim to reduce security risks but are likely unjustified ones. In other words, the frequency of these strikes as an apparent first resort (in contrast with capture) as well as the absence of explicit consent suggest that, as possible acts of law enforcement, these drone strikes are not easily justified; it does not suggest that we discount them being law enforcement actions at all.14

Is a Broader Conception of Defence Defensible? Though Brunstetter and Braun fail to clearly demonstrate the inadequacy of either the jus ad bellum principles or the law enforcement paradigm for assessing MMSoW, they attempt to build a positive case for jus ad vim being a distinct ethical category that contains a more permissive principle of just cause than jus ad bellum. They begin by suggesting that just war thinking has a problematic assumption in regard to MMSoW: ‘The limited level of force employed to combat nonstate actors points to a problematic 223

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assumption in just war thinking, namely, that advances in technology do not alter the interpretation of jus ad bellum principles’ (Brunstetter and Braun 2013: 94). They continue by chastising those who assume that ‘technology does not change the way we think about just cause’. It may be true that ‘our’ thinking of just cause has changed due to more precise military technology but this does not mean that we are thinking clearly about just cause. The authors remain, at this point, rather vague as to the basis of a just cause in general and why and how this basis is affected by the limited use of force in MMSoW. They suggest that ‘what is understood as just cause’ is a ‘moral and political calculus’ and that this calculus is ‘altered based on the scale of force being applied’ (Brunstetter and Braun 2013: 95). In other words, Brunstetter and Braun suggest that by the limited level of force employed potentially reducing the risks of collateral damage and harms to one’s own soldiers, then it is somehow easier to satisfy the condition of just cause – conceived as some sort of moral and political calculus. At first blush, it seems the authors have reduced just cause to an ad bellum proportionality calculation without clearly establishing the just ends that should be taken into that calculation. Before ad bellum proportionality can be considered, a just cause must be demonstrated so that we know what good we may reasonably anticipate resulting from a resort to military force. For the legalist paradigm, the state’s rights to sovereignty and territorial integrity must be shown to be threatened by an act of aggression and the severity of that threat must be known prior to judging ad bellum proportionality. For revisionist just war theories, it must be shown that the targeted individuals have made themselves liable to defensive harms by posing an objectively unjust threat of harm to others and we must know how many are so threatened and how severely prior to being able to calculate ad bellum proportionality.15 Without demonstrating the condition of just cause to be satisfied (no matter how it’s conceived), then the good being served by the resort to limited force or full-scaled war has not been established and, thus, cannot outweigh even the reduced likelihood of harms to one’s own soldiers or innocent non-combatants that people assume in the context of MMSoW. Brunstetter and Braun do attempt a more detailed account of just cause within a jus ad vim framework. While they claim a continuity between just causes for MMSoW and full-scaled war since 224

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‘self-defence and other-defence are the only legitimate causes for the use of force’, they quickly add ‘[i]n jus ad vim, defence is interpreted more broadly’ (Brunstetter and Braun 2013: 95–6) so as to include responses to lesser injuria than acts of aggression that more significantly violate state sovereignty and territorial integrity. Within the context of jus ad vim, a state has just cause to use measures short of war when responding to injuria against its interests or citizens. This includes responding to terrorist bombings, attacks on embassies or military installations, and the kidnapping of citizens. These are acts of aggression that justify the right to a forceful response. (Brunstetter and Braun 2013: 96)

No doubt, when embassies are attacked, citizens kidnapped or indiscriminate bombings have occurred, a wrong has been done against the individuals targeted or harmed. That the interests of their state may have been injured as well seems secondary. The only relevant sorts of state interests in regard to just cause are either the protection of its citizens’ rights or the protection of its own right to territorial sovereignty. Unlike a war of aggression, the list of injuria provided by Brunstetter and Braun do not qualify as significant violations of state sovereignty or territorial integrity. This fact appears to, at least partially, motivate their move to broaden how defence is conceived. These lesser forms of aggression supposedly justify a militarily forceful response but not fullscaled war. Yet, in order to satisfy the just cause condition, these MMSoW responding to lesser injuria must have the aim of either self or other defence. In what follows, I will address two serious problems with their conception of a just cause for MMSoW. First, their broadened conception of defence conflates defensive force with punitive and preventive force in ways that undermine the existence of a just cause. Second, the injuria they mention may be better characterised as international crimes than as acts of military aggression. In other words, their interpretation of just cause to lethal force obfuscates the issue of the target’s status as either criminal suspects or combatants and how they should be treated accordingly. Their more permissive conception of just cause does not contribute to a third category between war and law enforcement, but rather blurs the edges to the point that we can have little clarity. 225

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As the quote above indicates, the type of injuria which justify a state’s right to ‘forceful response’ include ‘terrorist bombings, attacks on embassies or military installations, and the kidnapping of citizens’. While this is not meant to be an exhaustive list, I will take these examples as emblematic for their argument. There is a question as to whether MMSoW in response to terrorist bombings, attacks on government outposts or kidnappings that have occurred in the past are defensive in nature. Selfdefence and other-defence is carried out against either ongoing or impending attacks. The resort to proportionate defence via MMSoW in instances when a terrorist bombing plot or attack upon a government outpost is in progress or impending can be justified by either jus ad bellum or law enforcement’s obligation to protect the innocent. While a law enforcement justification is more obvious for many such instances, the legalist just war paradigm could justify defensive responses when international terrorists are crossing borders to make an attack. On the other hand, the revisionist account of just war is clearer here insofar as individuals who are knowingly engaged in an ongoing or impending attack would simply make themselves liable to proportionate defensive force. Similarly, if the mission is to rescue kidnapped citizens and lethal force is necessary and proportionate, then there are already law enforcement or other-defence justifications available. However, as is more often the case, if the attack or bombing has already occurred or if the kidnapped citizens can no longer be rescued, then the forceful response is not in any obvious sense defensive but rather punitive. Punitive MMSoW face significant challenges in being justified. If the aim is retribution, then a resort to lethal violence is likely an extrajudicial execution, which violates the suspect’s rights to surrender and fair trial. Alternatively, punitive force could serve as a reprisal that aims to deter future violations of international law. Though this is also difficult to justify, I have addressed conceivable justifications elsewhere (Kaplan 2013). If the MMSoW is truly responding to past offenses or injuria, then Brunstetter and Braun’s broader conception of defence is actually guilty of conflating defence and punishment. A punitive resort to force that aims at increasing security is not identical with defence. After all, when we punish criminals after a fair trial, we are not directly defending anyone from harm but we hope that we are 226

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improving security within society. At bottom, any possible justifying arguments for punitive MMSoW are more restrictive and are of a different nature than those of self and other defence. While punitive force in response to past injuria could conceivably (though not easily) be justified, Brunstetter and Braun do not make this argument nor do they acknowledge that – rather than introducing a novel conception of jus ad vim defence – they are reverting to something akin to a more permissive strand of the just war tradition (Elshtain 2003; Johnson 2005; Augustine 2006; Aquinas 2006; Suárez 2006) that embraces punishment for past wrongs as a sufficient just cause for war. Considered from the authors’ broader thesis, the more limited force of MMSoW carried out by means of more precise technology does not alter the conditions under which punitive, lethal force can have a just cause – though it could affect the proportionality of punitive reprisals. In contrast with their examples which focus upon forceful responses to past injuria, the security threats posed by terrorists or militants existing within the borders of a weak state are more plausibly reasons for engaging in anticipatory force aimed at preventing future attacks and injuria. In regard to anticipatory resorts to force, Brunstetter and Braun propose: ‘Imminent threats of terrorist attacks also provides a just cause, as does responding to ongoing or impending humanitarian catastrophes’ (Brunstetter and Braun 2013: 96). Given that the threat is imminent, this is not a broadening of the meaning of either self or other-defence as they are understood in either the jus ad bellum or law enforcement frameworks. A pre-emptive MMSoW, if necessary and proportionate to stop an imminent attack, can be justified from the orthodox just war viewpoint which acknowledges the state’s right to defend its borders and its citizens’ rights. The revisionist account of just war would acknowledge the right to defensive force insofar as the imminent attackers are morally responsible for posing an objectively unjust threat and, thus, have made themselves liable to defensive harms. Alternatively, law enforcement agents may have justification to use lethal force, when necessary and proportionate, to stop an imminent attack from their obligation to protect the rights of the innocent. Typically however, counterterrorist MMSoW aim to thwart threats which are not imminent or impending but which are more temporally distant and, thus, fall under the heading of preventive 227

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resorts to force. It is worth emphasising that the more limited and precise force of MMSoW does not alter whether or not preventive MMSoW have a just cause. Though the authors do not directly say that this is the case, this does seem to be their suggestion, as they propose a more permissive just cause for jus ad vim which they claim is important in confronting situations where terrorists pose a threat from within weak states that are unwilling or incapable of addressing the security risk posed. In the end, Brunstetter and Braun fail to provide a broader conception of defence that avoids conflations with either punitive or preventive resorts to force. My point is not that punitive force which responds to past wrongs and preventive force which responds to more distant future threats can never be morally justified, only that these conceivable justifications are not for defensive actions (which respond to ongoing or impending threats) but actions that aim at reducing security risks. Security risk reduction aims to reduce the probabilities of unjustified harms and is conceptually distinct from defence where we attempt to interrupt a causal chain that will otherwise result in unjust harms to innocents.16 We can, I hope, gain much moral clarity by recognising the differences and not simply widening the round hole of defensive force to allow the square pegs of punitive and preventive MMSoW to fit through indiscriminately. We should also note that these three categories of force (punitive, defensive and preventive) can be morally assessed from within both the war paradigm and the law enforcement paradigm. By blurring these three categories together under their broader conception of ‘defence’, have Brunstetter and Braun created a distinct third paradigm (jus ad vim) or merely obscured the moral and legal issues? By examining their interpretation of just cause for MMSoW, it is hard to discern a clear and distinct alternative paradigm. However, when they turn their attention to the condition of last resort within jus ad vim, they make a passing comment which might reveal how they intend jus ad vim to stand as a distinct alternative to both jus ad bellum and law enforcement. According to Brunstetter and Braun, non-lethal policing actions must be attempted first in order for the last resort condition to be satisfied for MMSoW. The coordinated attempt to isolate and capture terrorists, freeze their assets and gather intelligence regarding their activities so as to thwart their plans is appropriate policing given the nature of the lesser injuria

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they may have committed or are likely to commit in the future. However, they state: [P]olicing operations will not always be adequate to address imminent threats, and states cannot be required to sacrifice the right to national security in the name of individual rights. Thus, there may be instances where the injuria does not rise to a level that would justify war, but is sufficient to warrant an armed jus ad vim response. (Brunstetter and Braun 2013: 97)17

In the quote above, the authors implicitly acknowledge that the rights of individuals will likely be violated by MMSoW – certainly the rights of the innocent who will inevitably be harmed or have their property destroyed as ‘collateral damage’ but perhaps also the rights of suspected terrorists to a fair trial. These individual rights, according to Brunstetter and Braun, can (and perhaps ought) to be sacrificed so as to protect ‘the right to national security’ but not vice versa. However, they say nothing more on the topic of a supposed right to national security. National security is not the same as national defence. A right to national defence is typically associated with the jus ad bellum just cause of repelling acts of international aggression that violate a state’s sovereignty or territorial integrity. A supposed right to state security seems to fit the ad vim focus upon responding to lesser injuria that fail to significantly violate state sovereignty or territorial integrity. However, if a right to national security exists, then this could conceivably establish extensive permissions for states to resort to force. Unlike defence against aggression, security has no clear threshold limit. Threats to national security can range from sensitive and confidential information being leaked or stolen, or the development of new weaponry by a traditional adversary, to the existence of terrorists planning future attacks. What degree of threat or risk to national security warrants a MMSoW? The authors assert that the threat must be imminent and that law enforcement measures must be impossible for last resort to be satisfied. Only then can the right to national security justify the resort to a MMSoW. If they mean by an ‘imminent threat’ that there is a threat of imminent attack, then the right of defence is applicable and the supposed right to national security is an unnecessary complication. However, this seems to

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run contrary to their broadened conception of just cause and their appeal to a supposed right to national security.

Escalation, Proportionality and Probability of Success Putting aside Brunstetter and Braun’s confusions regarding just cause and last resort within their jus ad vim framework, it is still worth considering their proposed ‘new’ principle of probability of escalation. After all, this is said to be a novel addition within jus ad vim. However, it should be asked how probability of escalation isn’t merely a feature of proportionality, as opposed to its own distinct principle. The authors tell us that ‘the raison d’être of jus ad vim resides in the calculation of the maximally just level of force that can be applied to a specific situation, not what level to begin with and escalate from’ (Brunstetter and Braun 2013: 98). Brunstetter and Braun appear to be taking aim at a peculiar conception of ad bellum proportionality that only takes into consideration the initial aims of an armed conflict and the initial probable outcomes but fails to continue to test the war for its continued proportionality. Though this notion that ad bellum principles need only be satisfied prior to initiating fighting, and not throughout the conflict, has been challenged by others (Frowe 2016). MMSoW have an apparent advantage as their scope is contained and, hence, we can ask not only whether the degree of force applied for accomplishing the specific security aim is proportionate but whether such a military strike or engagement will likely escalate to full-scaled war. I do think that there are parallel concerns regarding escalation in ad bellum proportionality deliberations that undermine both their claim that escalation is somehow a distinct condition or principle from proportionality and that it is novel to deliberations regarding MMSoW. Prior to engaging in a war of other-defence or a humanitarian intervention, it is quite typical to take into account the probability of whether the conflict will escalate both regionally and in terms of further military commitment on one’s own part. Escalation is one of many potential negative consequences that must be outweighed by the rights protections and preservations likely to result from the military act in order for ad bellum proportionality to be satisfied. However, according to Brunstetter and Braun, a primary aim of all MMSoW within their ad vim framework is to avoid escalation to full-scaled war. Thus, their 230

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suggestion is that probability of escalation is not only an issue of proportionality but of probability of success for MMSoW. Because the probability of success of a jus ad vim action hinges on avoiding escalation to a full-blown war, a new criterion is warranted: the probability of escalation . . . If engaging in jus ad vim actions has a high probability of resulting in war, then one can argue such actions are not justifiable, and must be subject to the stricter ad bellum regime. (Brunstetter and Braun 2013: 98–9)

Their stipulation that MMSoW can only be successful insofar as they remain short of war is interesting but is not supported by a direct argument. According to their view, the high probability of escalation does not make the MMSoW necessarily unjustified all things considered. Instead, it becomes a resort to military force that should be held to the stricter jus ad bellum criteria. Insofar as I have argued against Brunstetter and Braun’s more permissive jus ad vim criteria and given that probability of escalation can easily be included in jus ad bellum proportionality calculations, their stipulation for likelihood of success may be less significant than initially suggested by Brunstetter and Braun. That is, the probability of escalation principle only has significant force if the more permissive conception of ad vim just cause is convincing and I have raised reasons for being sceptical about the broader conception of defence they support. Second, since the probability of escalation can be readily taken into account within proportionality calculations, a novel principle is not required. However, when probability of escalation is considered for counterterrorist MMSoW, there are two additional complications that the authors do not consider. They raise the issue of escalation to full-scaled war but escalation could easily be conceived in terms of increased recruitment of militants or terrorists and general blowback in response to a targeted killing campaign. Is it somewhat arbitrary to set the stipulated limit on jus ad vim at the point of escalation to full-scaled war instead of escalation to prolonged (or apparently unending) cycles of smaller scaled violence?18 Certainly the significant probability of promoting continuous cycles of smaller scaled violence greatly complicate both the determination of proportionality and the likelihood of success. One novel complication which I have discussed elsewhere (Kaplan 2013: 245–6) 231

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is the indeterminacy of the timeframe in which both probability of success and proportionality would then be calculated. Unlike repelling an act of aggression where the timeframe for anticipating success has relatively clear limits, there is an indeterminate timeframe for reducing overall security threats and risks by means of a continuous campaign of targeted killings. In light of this indeterminate timeframe, some may claim that these strikes will eventually prove to be both effective and proportionate over the long term. The problem we face then is how can the ad bellum principles of proportionality and likelihood of success maintain any stringency in setting limits to just resorts to military force? This leads to a related but broader point. It may be problematic to analyse MMSoW as discreet, atomistic strikes as opposed to being part of larger institutional practices. For example, while each targeted killing by drone may be a viewed as a single MMSoW, each one is also part of a broader pattern of military engagement against a perceived set of security threats. Given the broader institutional practice, how can one reasonably distinguish between a singular targeted killing that must not lead to escalation and a broader pattern that already has escalated in large measure to a prolonged and apparently unending cycle of smaller-scaled military violence? It may in fact be rather misleading to propose a novel set of jus ad vim principles which narrow the focus of analysis to individuated strikes – as opposed to the broader pattern of engagement they constitute. The broader pattern, taken as a whole, may still be a MMSoW but may not have the advantages of more predictable consequences hoped for by advocates of jus ad vim.

Conclusions Are MMSoW more easily justified than full-scaled wars? If one stays focused solely on the issue of proportionality, then there are potential advantages to the more precise and more limited force typical within MMSoW. However, we have seen in the case of these two jus ad vim advocates a conflation between proportionality and just cause. By limiting the possible negative consequences to non-combatants and one’s own combatants, one does not somehow eliminate the potential reasons for rejecting preventive war 232

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on moral grounds nor does one somehow provide a persuasive rationale for broadening what is meant by self or other-defence. What these jus ad vim advocates are primarily concerned with are security threats that are perceived to exist within foreign borders – often within weak or failing states which either cannot properly address these threats or which may be unwilling to confront them. Individuals or groups may be perceived as security threats due to either their past violent actions, their ongoing preparations to attack, or by conspiring to commit an attack in the more distant future. Each perception of a security threat needs to be substantiated by evidence and, in the case of both those suspected of past violence and those suspected of conspiring to attack in the more distant future, the best place to test this evidence is in a court of law or some impartial tribunal. People suspected of either contributing to past terror crimes or conspiring towards future ones fit well within a law enforcement paradigm where the obligation to capture and the reciprocal rights to surrender and fair trial stand firm. The fact that capture may be difficult, temporarily impossible or is not supported by local authorities does not automatically make these suspected security threats legitimate targets for lethal force. Lethal force can be justified under a law enforcement framework but only when such force is necessary and proportionate to protect innocent persons from a threat that is either imminent or has crossed some significant threshold of urgency, which was discussed by Buchanan and Keohane (Buchanan and Keohane 2004). These more exceptional cases raise at least two challenging problems. First, since the threat of impending attack may not permit capture and trial, how will the evidence of this supposed impending security threat be fairly assessed and by whom? Is an international or domestic legal court the proper institutional venue to hear the evidence and offer a warrant to resort to lethal force? Should this hearing happen ex ante or post factum? Second, what threshold of urgency ought to be the benchmark for affirming the necessity of resorting to lethal force? Should it be Daniel Webster’s classic standard of imminence from The Caroline Case (1842), Walzer’s standards of necessary pre-emption (Walzer 2000: 81), or some novel standard like the one proposed by Buchanan and Keohane? These difficult questions are what must be addressed in order to truly assess the justice of current MMSoW, which are aimed at dealing with security threats and risks posed by suspected terrorists and militants either at home 233

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or abroad. Answering these questions does not, however, require the invention of novel jus ad vim principles nor will the answers to these questions only apply to MMSoW but will serve as clarifications of the current moral and legal frameworks used for justifying the resort to lethal defensive force.

Notes 1. I would like to thank Toby Reiner, Stephen Woodside, Jamie Kelly, Graham Parsons and participants at the Society for Applied Philosophy Annual Conference (2015) for their helpful comments on previous versions of this chapter. 2. Though some theorists, like Jeff McMahan (2012: 141–2), believe the contrast between the law-enforcement and war paradigms is only relevant for a legal analysis. 3. Writing about the supposed advantage of jus ad vim Braun and Brunstetter state, ‘This approach provides justification for the use of force that would be unacceptable in a law enforcement context, without invoking the permissive authorities of actual war’ (Braun and Brunstetter 2013: 317) 4. In this chapter, I will also indicate how the revisionist account is able to address the concerns of the jus ad vim advocate. For a thorough revisionist critique of jus ad vim, see Frowe (2016). 5. In contrast, precision technologies and strategies like targeted killings will introduce novel questions concerning the meaning of likelihood for success which will be discussed later in this chapter. 6. I will not be arguing that the fundamental moral justifications for resorting to lethal force within law enforcement are entirely distinct from justifications for resorting to defensive force more generally. Instead, the limits we typically associate with law enforcement, as it seeks to manage security risks, helps to bring into clearer focus what is morally salient about many counterterrorist MMSoW. 7. Interestingly, all three stages of containment might have been made part of a negotiated just settlement of the Gulf War to ensure a just peace protecting the rights of both Iraq’s Kurdish minority and neighbouring states. This would shift these measures from being conceived as preventive force to jus post bellum considerations. 8. Walzer does consider and criticise the consequentialist argument in favour of preventive wars which asserts that preventive wars that anticipate another’s aggression will avoid prolonged wars along with their associated costs, for example deaths to combatants and

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9.

10.

11.

12.

13.

14.

15.

16. 17.

civilians (Walzer 2000: 77). While Walzer rejects this position on consequentialist grounds insofar as it would lead to ‘innumerable and fruitless wars’, his primary argument against preventive war is non-consequentialist. David Rodin provides a convincing argument against such consequentialist arguments both for and against preventive wars on epistemic grounds (Rodin 2007). In contrast, David Luban (2004) uses a rule consequentialist argument to both reject a general permission for preventive wars and permit them in the case of ‘rogue states’ (Luban 2004). Fully assessing Buchanan and Keohane’s in principle argument exceeds the limits of this chapter. However, it is worth noting that they dedicate much of their paper to describe the institutional limits required to curtail the abuse of their more permissive standard for justifying preventive war. I will use the non-technical term of ‘impending threat’ to indicate that a threshold of urgency has been passed, even if it isn’t the threshold of imminence. It is worth commenting that these authors refer to ‘jus ad vim actions’ which is a misleading formulation as it suggests that these MMSoW have already been found just according to their ad vim principles and this is not necessarily the case. In support of this point, Gabriella Blum has argued that the dichotomy of peace and war does not fit many contemporary enduring conflicts, for example those conflicts between Israel and Lebanon, Greece and Turkey, and India and Pakistan (Blum 2007). Christian Enemark makes a similar error when he argues that drone strikes cannot be conceived as law enforcement for three reason: the dubious authority of individual states to enforce law beyond their borders, the lack of impartiality of drone employing states, and the likely human rights violation of targets who are not provided with a fair trial (Enemark 2014: 369–70). Again, these are potentially good reasons for doubting that targeted killings are justified as law enforcement acts but they don’t show how they cannot be conceived and assessed under the law enforcement paradigm. I am purposively leaving open the question whether one conceives of just cause under the orthodox legalist paradigm of just war theory that focuses primarily on protecting the rights of states to sovereignty and territorial integrity or from the revisionist approach which emphasises individual liability to defensive attack. Though space does not permit me to further develop this distinction here, I am currently doing so in another article. Further along in the same essay, the authors claim in contrast: ‘A state undertaking jus ad vim action thus cannot forego the rights

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Force Short of War in Modern Conflict of the Other for the sake of its own security . . .’ (Brunstetter and Braun 2013: 101). It is unclear how to reconcile these apparently contradictory positions. 18. While Enemark (2014) proposes that any resort to ‘perpetual force’ is unjust, my claim is limited to the way that apparent resorts to perpetual force challenge our ability to judge both proportionality and likelihood of success.

References Altman, Andrew and Christopher Heath Wellman (2008), ‘From Humanitarian Intervention to Assassination: Human Rights and Political Violence’, Ethics, 118: 2, 228–57. Aquinas, Thomas (2006), Summa Theologiae II-II, Q40, in Gregory Reichberg, Henrik Syse and Endre Begby (eds), The Ethics of War: Classic and Contemporary Readings, Oxford: Blackwell Publishing, pp. 176–82. Augustine (2006), ‘Questions on the Heptateuch’, in Gregory Reichberg, Henrik Syse and Endre Bebgy (eds), The Ethics of War: Classic and Contemporary Readings, Oxford: Blackwell Publishing, pp. 82–3. Blum, Gabriella (2007), Islands of Agreement: Managing Enduring Armed Rivalries, Cambridge, MA: Harvard University Press. Braun, Megan and Daniel R. Brunstetter (2013), ‘Rethinking the Criterion for Assessing CIA-Targeted Killings: Drones, Proportionality and Jus ad vim’, Journal of Military Ethics, 12: 4, 304–24. Brunstetter, Daniel R. and Megan Braun (2013), ‘From Jus ad bellum to Jus ad vim: Recalibrating Our Understanding od the Moral Use of Force’, Ethics & International Affairs, 27: 1, 87-–06. Buchanan, Allen and Robert O. Keohane (2004), ‘The Preventive Use of Force: A Cosmopolitan Institutional Proposal’, Ethics & International Affairs, 18: 1, 1–22. Elshtain, Jean Bethke (2003), Just War against Terror, New York: Basic Books. Enemark, Christian (2014), ‘Drones, Risk and Perpetual War’, Ethics & International Affairs, 28: 3, 365–81. Frowe, Helen (2014), Defensive Killing, Oxford: Oxford University Press. Frowe, Helen (2016), ‘On the Redundancy of Jus ad vim: A Response to Daniel Brunstetter and Megan Braun’, Ethics & International Affairs, 30: 1, 117–29. Johnson, James Turner (2005), The War to Oust Saddam Hussein, Latham: Rowman and Littlefield.

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Are Novel Jus ad vim Principles Needed? Kaplan, Shawn (2013), ‘Punitive Warfare, Counterterrorism, and Jus ad bellum’, in Fritz Allhoff, Nicholas G. Evans and Adam Henschke (eds), The Routledge Handbook of Ethics and War: Just War Theory in the Twenty-First Century, London: Routledge, pp. 236–49. Luban, David (2004), ‘Preventive War’, Philosophy and Public Affairs, 20: 3, 223–32. McMahan, Jeff (2009), Killing in War, Oxford: Oxford University Press. McMahan, Jeff (2012), ‘Targeted Killing: Murder, Combat or Law Enforcement?’ in Claire Finkelstein, Jens David Ohlin and Andrew Altman (eds), Targeted Killings: Law and Morality in an Asymmetric World, Oxford: Oxford University Press, pp. 135–55. Orend, Brian (2013), The Morality of War, Peterborough: Broadview Press, 2nd edn. Rodin, David (2005), War and Self-Defense, Oxford: Clarendon Press. Rodin, David (2007), ‘The Problem with Prevention’ in Henry Shue and David Rodin (eds), Preemption: Military Action and Moral Justification, Oxford: Oxford University Press, pp. 143–70. Song, Jiewuh (2015), ‘Pirates and Torturers: Universal Jurisdiction as Enforcement Gap-Filling’, Journal of Political Philosophy, 23: 4, 471–90. Suárez, Francisco (2006) ‘Justice, Charity, and War’, in Gregory Reichberg, Henrik Syse and Endre Bebgy (eds), The Ethics of War: Classic and Contemporary Readings, Oxford: Blackwell Publishing, pp. 339–53. Tesón, Fernando (2003), ‘The Liberal Case for Humanitarian Intervention’, in Jeff L. Holzgrefe and Robert O. Keohane (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas, Cambridge: Cambridge University Press, pp. 93–129. Tesón, Fernando (2005), ‘Liberal Security’, in Richard Ashby Wilson (ed.), Human Rights in the ‘War on Terror’, Cambridge: Cambridge University Press, pp. 57–77. Walzer, Michael (2000), Just and Unjust Wars: A Moral Argument with Historical Illustrations, New York: Basic Books, 3rd edn. Walzer, Michael (2006), ‘Regime Change and Just War’, Dissent, Summer, 103–8. Walzer, Michael (2007), ‘On Fighting Terrorism Justly’, International Relations, 21: 4, 480–4.

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12 Moral Injury, Mission-Drift and Limited War

James Gillcrist and Nick Lloyd

The justification for the resort to and continuation of force between nations rests upon the satisfaction of all jus ad bellum conditions. A war is considered just, by just war theorists, if and only if it is waged for a just cause, with the right intention, as a last resort, declared and executed by a legitimate authority, has a reasonable prospect of achieving the just cause and the just cause benefit is proportional to the costs of waging the war. We intend to suggest that it is highly unlikely that a limited war can be justified. For, limited war is inherently prone to mission-drift, missiondrift is likely to cause moral injury and, since moral injury often results in suicide and other destructive behaviours, these costs, once accounted for, render limited wars unlikely to produce just cause benefits outweighing the total costs of waging war.

Guilt, shame and moral injury Moral injury is psychological injury resulting from severe guilt and/or shame.1 Prevalent symptoms of moral injury are suicidal ideation and behaviour: ‘Many combat veterans think daily of suicide’ (Shay 1994: 179). We feel guilt when we believe we have done something or are ourselves morally vicious; we feel shame when we believe others, specifically close acquaintances, will perceive us to be or as having done something morally vicious.2 In this section, we provide an explanation for why killing persons is likely 238

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to lead to severe guilt and/or shame and, thus, to moral injury. Once complete, we will also provide Grossman’s account for why killing others does not necessarily do so. Most persons believe that it is wrong to take another’s life and they experience great resistance to doing so. In his essay, ‘The Challenge of Cultural Relativism’, James Rachels (2003) argues that strict and highly revered prohibitions against the arbitrary killing of other persons are universal traits of human society. For, if there were no such prohibitions, Everyone would have to be constantly on guard, and everyone would try to avoid other people . . . Society . . . would thus collapse. Of course, people might band together in smaller groups with others they could trust not to harm them . . . They would be forming smaller societies that did acknowledge a rule against murder. The prohibition against murder, then, is a necessary feature of all societies. (Rachels 2003: 26)3

Rachels’ argument need not rest on any truth of morality. It need only provide reasons for why such a deeply held belief would be widely accepted in all human societies. When one causes the death of another person, one must have justification, else he will experience guilt and/or shame: guilt if he sees himself or his own actions as vicious; shame if he believes others will see him or his actions as vicious. Soldiers, while trained and indoctrinated in the business of killing, are not immune: [The Soldier] is what his home, his religion, his schooling, and the moral code and ideals of his society have made him. The Army cannot unmake him. It must reckon with the fact that he comes from a civilization in which aggression connected with the taking of life is prohibited and unacceptable . . . it is not removable by intellectual reasoning such as, ‘kill or be killed’. (Marshall 1947: 78)

Like everyone, if soldiers kill without cause, they consign themselves to guilt or shame. Implicit in Marshall’s Men against Fire, the soldier must perceive the cause to be clear, worth killing over and amounting to more than mere individual self-defence. In the Second World War, less than 25 per cent of riflemen, to include ‘well-trained and campaign-seasoned troops’ fired their weapons 239

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in combat (ibid., 50).4 These low firing rates attest to the ‘simple and demonstrable fact’ that ‘man is not by nature a killer . . . there is within most men . . . a resistance so strong that, in many circumstances, soldiers on the battlefield will die before they can overcome it’ (Grossman 1996: xiv, 4). Thus, when soldiers do kill, they ask, ‘Am I a murderer?’5 If they believe they are, they will experience guilt; if they believe others will see them as such, they will experience shame. Guilt and shame for killing results in grave moral injury, which has an overwhelming propensity to lead to suicidal thoughts and behaviour (Bell and Nye 2007; Fontana and Rosenheck 1999; Hendin and Haas 1991; Hyer et al. 1990; Maguen et al. 2010, 2011, 2012, 2013; Rice and Sher 2013). Maguen et al.’s study ‘found that veterans of war endorsing killing experiences were twice as likely to report suicidal ideation as those who did not kill, even after accounting for PTSD, depression, and substance use disorder diagnoses’ (Maguen et al. 2012: 922). Not all killers experience moral injury; many neither experience guilt nor shame. In On Killing, Grossman carries out ‘a scientific study of killing within the Western way of war and of the psychological and sociological processes and prices exacted when men kill each other in combat’ (Grossman 1996: xxix). Grossman accepts the account of guilt, shame and moral injury argued here before providing a theory, based on distancing, of guilt-avoidance and amelioration for killing humans.6 Distance functions to buffer from and resolve the guilt one might suffer in response to having killed. Distance is subdivided into two distinct categories: physical and emotional. In order to clarify the theory, we introduce a third category: epistemic distance. By this, we mean that when one believes they have not contributed, in any way, to the death of another person, we should not find that this individual suffers from guilt associated with killing: that is, to believe that one has not killed is to believe that one has not deeply violated an ingrained norm against killing one’s fellow man. Ceteris paribus, epistemic distance absolutely shields the individual from guilt. Physical distance approximates to epistemic distance. At great range, the individual can delude himself into believing that he has not killed a person. The bombardier at 30,000 feet fires and forgets, does not observe the impact of the bomb and need not think 240

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he has killed persons in the blast radius. He may neither observe nor reflect on the persons that are burned alive by the intense heat of the blast before being shredded and crushed by the shrapnel of the bomb and the walls of the crumbling building. The physical buffer allows for epistemic distance. We can, however, imagine the bombardier believes that humans are killed by his actions. Yet, such humans need not be viewed as persons by the bombardier. He can understand that his actions resulted in the deaths of hundreds of humans, yet see these only as de-personalised numbers: he never observes personality, emotional response, physical characteristics and so on. Thus, the bombardier need not suffer guilt over killing persons because there is no such genuine conviction that genuine persons were killed. As physical distance narrows, the ability to deny that the victim is a person diminishes to the point in which it is nearly impossible to emerge guilt-free. At knife-range, the killer ‘is almost instantly overwhelmed by the guilt stage as [he] is faced with the undeniable evidence of what he has done, and the guilt stage is often so strong as to result in physical revulsion and vomiting’ (Grossman 1996: 115).7 Physical distance functions to provide rationalised denials that an act either did not result in killing or did not result in killing persons. When this cannot be denied, we cannot avoid the belief that we have done something grave; thus, we experience guilt. The more sophisticated emotional distance divides into three subcategories: mechanical, cultural/social and moral. The first two function similarly to physical distance in that they provide for denials that one has killed or that one has killed persons; the latter, however, depends on overt justification for the killing of persons. Mechanical distance filters out the reality of the world, enabling the killer to deny the reality of the personhood of the victim. Sight, sound, smell or touch are removed from the situation, creating a sterility in which the experience is rendered surreal. For example, a drone operator may target his victim via grayscale screens; he neither hears, smells nor touches the area of destruction (he may, in fact, be listening to Mozart, smelling his fresh coffee and clicking his mouse); at the point of impact, one screen goes black and the only destruction observed is from the drone camera at 10,000 feet; the task complete, he sends up his confirmation report, retires to the latrine, chats with his buddies and may even check sports scores on 241

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his phone. The grave reality of the situation is limited or removed for the operator. Thus, the operator is not directly struck with the fact that he has taken the life of a person. Compare this situation to that of the rifleman on the ground, who acquires his target from 25–100 metres and fires. The rifleman’s ears ring at the crack of the round breaking the soundbarrier; he sees the round penetrate the target; once the target drops, the rifleman moves to the target, hears the death rattle, is overcome by the stench of death and then touches the person as he searches through their bloody clothes for weapons and intel; many times finding very personal mementos and photos on the person. This is a visceral experience and the reality is neither filtered, limited nor removed. Cultural/social distance, or intraspeciation, relies on ethnic, racial, class or caste views of superiority. An individual who genuinely believes he belongs to a master race which reigns above ‘inferior’ races need not feel guilt over killing what he believes to be subhuman. We can understand, without condoning, that the individual who sincerely believes he belongs to a group that is superior to other groups may lack any scruples over killing what he believes to be inferior creatures, in the same way we can understand that one who slaughters cattle need not face any scruples regarding his job, even if he genuinely believes the cows suffer, for there may exist no entrenched belief in a prohibition against killing cattle.8 Moral distance, unlike the previous types, need not rely on a denial of the act or the personhood of the victim. Moral distance is maintained through overt and overriding justification for killing other persons. Most persons believe that killing persons is prima facie immoral; that is, in some circumstances killing persons can be justified, though this justification needs to be robust.9 The justification must be strong, clear and urgent. That is, whatever it is that is prompting one to kill must be worth killing over, must be clearly threatening, and it must be believed that killing, at that moment, is the only way in which that which is worth killing over can be preserved. If such justification is believed to be present, one achieves moral distance and will not suffer guilt. Once, however, the justification is called into question, the moral distance diminishes. If the questions cannot be satisfactorily resolved, moral distance collapses and severe guilt follows. 242

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Thus, the resistance to killing can be overcome, guilt-free, so long as we either do not believe we are actually killing, do not believe those we are killing are persons or our fellow-men, or do believe that we have a clear justification for killing. That is, so long as we can distance ourselves, either physically or emotionally, from the act or the victim, we can operate in a manner that results in the deaths of other humans without suffering guilt and, consequently, moral injury. If we can satisfy these distancing requirements and avoid moral injury, then we can avoid suicidal ideation and behaviour. However, if the killer cannot distance himself, he faces overwhelming moral injury and we come face to face with the following image: [T]he veteran clinging to sanity above the sucking whirlpool of rage and grief, fear, guilt, and despair – and of all the destructive ways that humans act on these vehement emotions. What’s at the bottom of that vortex? Death by suicide, death from the myriad ways that drugs and alcohol can kill, death from risks gone bad – in fights, crashes, shootouts, falls, death from neglect of self-care, death as the end of a prison life sentence. (Shay 2002: 107–8)

Mission-drift, total war and limited war In assigning and executing tasks, we ought to have a purpose given for and driving said tasks. Mission-drift is the phenomenon wherein tasks drive purposes, primarily indicated by stated changes in purpose for given tasks that remain the same. The extreme end of mission-drift is often observed in sunk-cost arguments: • • • •

We have exacted costs. We have incurred costs. If we stop now, these costs will be in vain. We must continue what we are doing to ensure these are not in vain.

The prevalence of sunk-cost arguments can seem ubiquitous during limited wars, where the task of killing, along with the risk of being killed, is maintained merely because those in charge want a resolution that, merely because it is a resolution, gives meaning to the lives lost. 243

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Mission-drift is problematic in all forms, as it leads to a questioning of purpose and, thus, of the importance of the task; it is morally problematic when it leads to questioning the justification of a morally grave task, because questionable justification for morally grave actions leads to moral injury. Limited wars have a propensity to incur mission-drift. Thus, limited wars have a propensity to cause massive amounts of moral injury. This being the case, one cost of limited wars is large veteran suicide rates. War is a violent and forceful extension of politics. To be a war, violent means must at least be threatened for the sake of some political end; this entails an agreed upon solution by the parties.10 If by ‘total war’ we mean the aim of absolutely vanquishing all opposing parties, it is self-contradictory. Moreover, as just wars require just resolutions be sought, the aim of destroying all enemy parties is, by default, an unjust aim. As ‘total war’ and ‘limited war’ are ambiguous, here we will consider them within the context of wars that can satisfy both the definition of war and the just cause requirement. Violence can never be justified as a substitute for good-faith negotiation. Thus, violence ought only to be aimed at persuading or coercing parties to negotiate for resolution. The final aim of the violence must be to set the conditions in which the parties will be more interested in discourse than continuing hostilities; therefore, violence is a means to set the conditions for acceptable political resolution. Moreover, legitimate violence can only be resorted to in order to force negotiations in the face of a grave threat when that which threatens is an entity that is capable of negotiation. A threat is merely what will likely happen, for example thousands of persons will die. That which threatens is how these negative consequences will be brought about: this can be a person, object and so forth. We can decisively eliminate a threat only if we can identify that which threatens.11 We maintain that both the threat and that which threatens must be indicated in the declaration of just cause, right intention and last resort by the legitimate authority proposing to wage war. These threats and that which threatens can be assessed in terms of clarity and immediacy. When both the threat and that which threatens are identified, that is, we can point to the entity that is threatening, the threat is clear. If either the threat or that which 244

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threatens is unidentified, the threat is vague. Moreover, the threat is immediate if it is reasonable to believe that action to eliminate the threat must be taken at present else the threat will manifest in the threatened destruction. It is remote if it is reasonable to believe such action may be postponed without the threat manifesting in the threatened destruction. Thus, there are three possible types of threats: clear and immediate, clear and remote, and vague and remote. For, it cannot be reasonable to believe, where one cannot identify either the threat or that which threatens, that the threatened destruction is immediate. Threat-types are relevant for identifying the appropriateness and urgency of response. Lacking immediacy, there is no reason to believe that a response is urgent and, thus, no reason to incur excessive burdens to eliminate the threat. Without clarity, there is no immediacy. When clear, if combat is required to eliminate the threat, that which threatens will be sovereign organisations (persons, states or state-like entities); if the threat can be eliminated via police action or interdiction, that which threatens may be non-sovereign (e.g. a time-bomb in a mall). Sovereign organisations are those which enforce their own laws in their territory and are not subject to other organisations. Since enforcing laws and remaining unsubjected to others relies upon force, these organisations must be equipped with police and military forces; the use of sovereign power relies upon such forces. When belligerent, the threats from such organisations are clear, as are the means for eliminating the threat: diminish or destroy the police or military forces; thereby diminishing or destroying the sovereign power of the belligerent. The recognised threat from such organisations provides, to a high degree, the urgency of the danger, as taking account of military might is a straightforward process: we count the number of troops, artillery pieces, tanks, warships and warplanes on the move. If the threat faced does not come from a sovereign organisation, it will be vague, in that it will neither be clear exactly which individuals are carrying out the threat nor the urgency and gravity of the threat. Countable persons in uniforms, moving in formations, equipped with heavy weaponry are absent from such a threat. The danger is in a very real sense vague and remote. Further, whereas eliminating the threat from a sovereign organisation depends on eliminating the forces of sovereignty, eliminating the threat from 245

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non-sovereign organisations relies, in large part, on police work. Thus, what is often necessary is the creation or buttressing of sovereign power in the area in which these organisations operate: that is, entities that oppose the non-sovereign belligerents must be given the power to police and enforce law with regard to these belligerents. The primary strategies, then, for setting conditions for negotiation are to direct one’s efforts to either directly reducing or destroying the sovereign power of belligerent organisations that are threatening, or directly creating and increasing sovereign power in order to eliminate the threat from non-sovereign entities operating in the area. Within this distinction, we find the distinction between total and limited war. Total war primarily focuses on reducing and destroying sovereignty; limited war on creating and increasing sovereignty. An implication of this distinction is that total wars have a propensity to avoid morally problematic mission-drift, while limited wars have a propensity to incur it. For, where threats are perceived as clear and urgent, so too is the justification of war and sacrifice. This helps to explain the perception of ‘total war’ as that in which the entire nation is mobilised for the war effort, since in the face of a perceived clear and immediate danger, persuading the population to mobilise and incur great burdens is reasonable and simple. Further, the task and purpose in total war are aligned, since the task is to kill the enemy soldiers and the purpose of this task is to decrease the threat from the sovereign power. The justification for the specific task of killing is clear. The task and purpose of limited war are not clearly aligned and the justification for the task of killing is rarely clear. While the overriding purpose of limited war is to eliminate a threat, the primary strategy and associated tasks are murky. Decreasing sovereign power is straightforward: kill the forces the sovereign relies upon to maintain her power. The only difficulty is mechanical: can we kill their forces? Conceptual difficulties are faced when trying to create, sustain or increase sovereign power. How does one even begin to go about trying to achieve such a purpose? Whatever the given task, the alignment with purpose will be vague. Thus, the task of killing persons in war, even if such persons are obviously enemies, does not clearly lead to the goal of sovereign creation. For, the enemy that was killed might not be known by his local friends 246

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and family to be such. The friends and family may stop cooperating; worse, they may take up arms. As more enemies are created, the likelihood that friendly soldiers will be killed increases. Returning to the earlier discussion of clear and immediate versus vague and remote threats, we must stress that where the threat is vague and remote, the population will be unwilling to incur extra burdens and send their military personnel off to die. They assert that what is at stake is worth killing over, yet not worth dying for. They will be less willing to support large troop deployments, believing that the greater the number of troops deployed, the costlier the war, both in terms of friendly casualties and taxes. Those making the decision to go to war, however, will understand the principles of warfare. These are prioritised principles aimed at tactical, operational and strategic success. In order to provide the greatest assurance that the mission will succeed, all available resources must be allocated, concentrated and brought to bear on the objective; that is, massing of power is the most critical of the principles. In order to make victory more likely, they must attempt to persuade the public to incur greater costs, whether in the form of taxes, rationing or military service.12 To this end, they will either argue that the threat is greater than can be perceived by the publicly available evidence or that the war will be quick and relatively painless; that is, high casualties are not expected. Persons, being inclined to guard their property and lives, and sceptical regarding evidence to which they are not privy, are unlikely to be persuaded to bear significant burdens as a result of the politician’s plea. Thus, in the face of a vague and remote threat, the available resources for the execution of the war will be insufficient and, since it is not obvious that the cause is worth dying for, the war will be sold on the premise of low casualty expectations. We should, however, expect longer campaigns and higher casualty counts than promised. The threat and the enemy being not clearly defined, the tactical, operational and strategic level objectives will fail to be decisive.13 This violates the second principle of warfare: objectivity. In violating the first two principles of warfare,14 the likelihood of higher casualties and a prolonged war increases. As time passes, the perceived urgency must wane, for the lack of the manifestation of the original threat renders it, in the minds of many, to have not been immediate but remote; yet casualties continue to accumulate. If constituents believe the moral 247

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urgency has waned, the original purpose is perceived as insufficient for the high casualty rates. Thus, as casualties mount, either the task of warfighting must be abandoned or the original purpose must be modified in order to justify the casualties. The latter represents morally problematic mission-drift, leading the soldier to question whether the purposes provided are worth killing over. Ultimately, if the soldier does not find a satisfactory answer, he will experience guilt and/or shame, suffer from moral injury and engage in suicidal ideation and behaviour; thus, suicide is more likely to result from limited war. The cruel twist of limited war is that it is replete with conditions that restrict physical and emotional distance. Often, enemy combatants will be non-uniformed. For, in limited war the threat is not a sovereign and its military. Rather, the threat consists in small groups, their members inconspicuous, that covertly attack and quickly disperse into the civilian population. Since physical terrain is not at stake, these combatants need not worry about holding and defending or attacking to seize terrain. Their aim is to counter the efforts to create or increase sovereign power and they accomplish this by living within the communities in which this mental terrain is at stake. Thus, in limited war, we find the ubiquitous presence of non-uniformed combatants. In the Second World War, Audie Murphy reported, ‘I cannot see men any more. I only see uniforms’ (Murphy 1977: 269). Uniforms de-personalise.15 The lack of uniform renders the enemy combat more of a person in the mind of the soldier tasked with killing. In This Kind of War, T. R. Fehrenbach asserts: you may fly over a land forever; you may bomb it, atomize it, pulverize it and wipe it clean of life – but if you desire to defend it, protect it, and keep it for civilization, you must do this on the ground, the way the Roman legions did, by putting your young men into the mud. The object of warfare . . . is not to destroy the land and people, unless you have gone wholly mad. (Fehrenbach 1963: 290)

The aims of limited war require that soldiers carry out their tasks on the ground. Creating or increasing sovereign power requires counsel and training, for those that will partake in the new or emboldened sovereign entity, both in how to effectively provide services to citizens and subjects and in how to effectively police 248

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and defend the community. Thus, the soldiers on the ground must work closely with and rely upon the local population. These are diminishing factors to physical and emotional distancing. Working and living within the communities serve to increase the combatant’s perception of personhood of the local community members. The more one works and sacrifices for individuals in the community, the more difficult in becomes to see all members of said community as inferior and worthless. Thus, limited war cannot provide the distancing requisite for the killer to deal, guilt- and shame-free, with his killing. The lack of distancing entails that the combatant must believe that he has killed a person; the lack of moral distance, due to mission-drift, entails that the combatant cannot clearly provide justification and, thus, declare that there were reasons worth killing over. As what were promised as short and inexpensive wars expand to long wars with high casualty counts, the questions, ‘Is this worth dying for?’ and ‘Is this worth killing over?’ become more widespread. In all instances in which these questions are not satisfactorily answered, the guilt and shame experienced by the soldiers increases. So, too, cases of moral injury, suicidal ideation and suicidal behaviour increase.

The Second World War: Clear, consistent and seemingly just The Second World War, for the US, represents the paradigmatic case of a clear and consistent mission. The motivations for entry into the war, at the time, were seen as immutable. Before the Japanese attack on Pearl Harbour, President Roosevelt recognised the danger that Hitler posed to allied European democracies, as well as the threat of imperial expansion in Asia. The war was framed not merely as an attempt to save democracy, but also in terms of self-defence. Roosevelt’s language, in the 1942 Declaration by United Nations, appealed to American ideals of justice and democracy and primed the public for the enhanced role their country would play in world affairs. Conduct of the war for the US fully displays the potential of mass mobilisation. Society was transformed as women went to work on assembly lines and, in four years of war, the US produced 249

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more arms, food, clothing, oil and coal than all of the Axis Powers combined. In combat, hearts were hardened to the realities of modern industrial warfare: toward the end of 1944, mass bombing raids on German and Japanese cities became the norm and there was little consideration given to dropping atomic bombs on Japan in 1945.16 The lack of dissonance and emotional trauma surrounding these events can be partially explained by the overwhelming propaganda effort within the US, but the greater factor was clarity and consistency of mission. The goals of the Second World War never wavered. Most Americans knew what they were fighting for and thus were able to achieve moral distance, separating themselves from guilt, shame and moral injury. Even Paul Fussell, a historian who has written all wars are ‘stupid and sad’, asserts ‘the Second World War was fought against palpable evil, and thus was a sort of moral triumph . . .’ (Fussell 1989b: 142; Fussell 1989a: 34). Morally triumphing over evil buffers us from guilt and this can be observed in the historically anomalous low suicide rates and post-war mortality rates of allied veterans: early mortality for these veterans was lower than that of their nonveteran peers (Breslin et al. 1988: 418).

Persian Gulf War: Clear, consistent, but not obviously just In 1990, the US moved quickly to assemble an international coalition to drive the Iraqi Army out of Kuwait: Operation Desert Storm. The mission was clear and consistent, as reflected in both the rhetoric and actions of US leaders: liberating Kuwait was the sole end being sought and it was achievable. Thoughts of removing Saddam Hussein from power (by foreign powers) and expanding the mission were put aside for reasons of impracticability and fear of mission-drift. The coalition relied heavily upon technological superiority for the unprecedented speed of success in the campaign, but the same can be said for the 2003 Iraq War in its initial drive to Baghdad. Yet, the Gulf War did not suffer from an overly ambitious set of goals like that of its successor. In sticking to achievable goals, the US was able to build a strong coalition and conclude the endeavour in a clean manner that did not breed political and psychological dissonance at home. 250

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Regarding consistency of war aims, the Gulf War is a textbook case of a clear and consistent mission, even though it may not be a textbook case of a just mission. Like the cohort of Second World War veterans, we do not find greater suicide rates among Gulf War veterans than among their non-veteran peers and there is no significant spike in suicides among military personnel from the years prior to the Gulf War to the years following it (Maguen et al. 2011: 563).17

Vietnam: Unclear, inconsistent and seemingly unjust Justification for US involvement in Vietnam was based on an ideological commitment to support democratic partners against communist takeover. Beginning in 1954, with the partitioning of Vietnam, the US provided support and advisors to bolster the South Vietnamese government. As the situation deteriorated, American involvement escalated and an incident in the Tonkin Gulf in 1964 served as the jumping off point for large-scale deployments of conventional troops. Justification for US policy remained anchored in the dual goals of South Vietnamese independence and resistance to the spread of communism, as Lyndon Johnson expressed in 1965: Let no one think for a moment that retreat from Vietnam would bring an end to the conflict. The battle would be renewed in one country and then another . . . We must stay in Southeast Asia. Our Objective is the independence of South Vietnam and its freedom from attack. We want nothing for ourselves . . .18

While preservation of democratic autonomy aligns with mainstream American thought, the goal was reactionary. As such, it was difficult to mobilise the population. As the war dragged on and struggle ensued, domestic pressure mounted and the purpose of the war became unhinged. Arguments regarding the necessity of maintaining American prestige, upholding commitments, superseded the ‘domino theory’ justification. President Johnson repeatedly evoked the war’s casualties in a logically strained, yet emotionally powerful, sunk-cost appeal to stay the course. 251

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In 1968, Richard Nixon was elected, vowing to make ‘peace with honour’ and the war, now bereft of any belief in significant victory, continued four more years merely in an attempt to ensure that the casualties both exacted and incurred had not been in vain. Following US withdrawal in 1975, the US faced a veteran crisis of moral injury and suicide. According to Jonathan Shay, twice as many US soldiers committed suicide after Vietnam than were killed during the war (Shay 1994: 179) and the rate of suicides among Vietnam veterans was 65 per cent higher than that of their non-veteran counterparts (Hendin and Haas 1991: 586), as the Vietnam War ‘produced more victims of PTSD, in both relative and absolute numbers, than any other war in American history’ (Gabriel 1987: 77). ‘Lingering guilt related to wartime actions’ lead to ‘suicidal behaviour among veterans that is part of the complex legacy of the Vietnam experience’ (Hendin and Haas 1991: 587).

Afghanistan and Iraq: Unclear, inconsistent and seemingly just (Afghanistan) and unjust (Iraq) Following the 11 September attacks, the US began military operations in Afghanistan which aimed to defeat al-Qaeda and bring those responsible for the attacks to justice. Simultaneously, the administration began planning the invasion of Iraq and overthrow of Hussein: an invasion publicly justified in terms of pre-emption against the threatened use of weapons of mass destruction (WMDs). The initial invasion ground wars in both theatres were swift and relatively low in cost. Prior to the invasion of Afghanistan, President George W. Bush declared, ‘We’re not into nation-building . . . we’re focused on justice’ (Sanger 2001), yet the focus of operations in Afghanistan and Iraq rapidly shifted to nation-building. The original rationales given for the invasions of Afghanistan and Iraq were to capture and/or kill bin Laden and disable al-Qaeda, and to destroy stockpiles of WMDs, respectively. By 2004, when it became clear that bin Laden was no longer in Afghanistan, that alQaeda could not be surgically disabled and that no stockpiles of WMDs existed in Iraq, the rationales for both operations shifted

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to building democracies and creating sovereign states that could police and defend themselves. From then on, the US was bogged down in fighting large-scale insurgencies in both countries and the justification for the longer wars and higher costs pivoted once again, this time to fighting global terrorism, as Bush declared in 2007, similarly to Johnson in 1965, ‘We will fight them over there so we do not have to face them in the United States of America’ (Fox News 2007). It was clear that these insurgencies were not being quelled and the US embraced a surge strategy, sending in a large influx of troops to establish order and train local army and police. This display of strength was supposed to demonstrate that America and the local governments could provide security, thus persuading locals to join in the political process necessary for the erection and maintenance of sovereign states. Yet, this strategy ultimately failed in Iraq and, at the time of this writing (2017), is failing in Afghanistan, as casualties mount with no clear signs of victory or purpose. The issue, though, is not whether each of these reasons and strategies are justifiable, but rather that they do not represent a consistent rationale for resorting to or remaining in war. The drifting of mission and goals in Afghanistan and Iraq are emblematic of a policy that is set in support of a war, rather than letting the war be shaped by policy. This has led to the lack of clear and overt justification on behalf of the troops, producing guilt, shame, moral injury and suicidal behaviour. According to Maguen et al., 77–87 per cent of infantry soldiers in Iraq reported shooting at persons and 48–65 per cent reported responsibility for killing (Maguen et al. 2010: 86); 75 per cent of those who reported killing in Iraq and Afghanistan suffer from the most severe levels of PTSD (Maguen et al. 2013: 347); that is, between one third and one half of infantrymen who served in Iraq or Afghanistan suffer from the most severe levels of PTSD and ‘killing was the most potent ingredient in predicting PTSD’ (Maguen et al. 2010: 86). Along with Grossman, Shay and Sherman, these studies connected PTSD to guilt and suicidal behaviour, asserting, ‘Findings with OEF/OIF [Operation Enduring Freedom/ Operation Iraqi Freedom] veterans mirror past studies with Vietnam veterans that have also found a relationship between mental health symptoms, suicide risk and completed suicides’ (Maguen

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et al. 2011: 563). Regarding the connection between killing, guilt and suicide: killing in combat and the guilt and shame that follow are not traditionally conceptualised as risk factors for suicide. This finding is consistent with research conducted with veterans of prior eras (Fontana et al, 1992), and highlights the importance of assessing for killing, especially killing that has resulted in guilt (Hendin & Haas, 1991) . . . moral injury requires an act of transgression that severely and abruptly contradicts a personal or shared expectation about the rules or the code of conduct, results in dissonance or conflict, and may lead [to] shame, guilt, and a failure to forgive oneself (Litz et al, 2009); killing and suicide risk may be associated with each of these components of moral injury. (Maguen et al. 2011: 566)

Concluding remarks These historical cases highlight that it is not the justice of the war that leads to moral injury, but the perceived justification in the eyes of the combatants, and this is nearly impossible to maintain when mission-drift occurs. In the final pages of Achilles in Vietnam, Shay asserts, ‘One human being violates the human rights of another by intentionally acting upon the other in a manner that causes PTSD and character damage’ and he posits the following maxim: ‘Refrain from doing that which causes PTSD symptoms and character damage’ (Shay 1994: 208–9). The propensity of limited war to produce moral injury that often results in suicide is a foreseeable cost of waging such wars. Like all other costs, it must be factored into the projected proportionality calculations both prior to and during the war. We can imagine that working to create or increase the sovereignty of another community is worth sacrificing a few hundred lives; yet, it may not be the case that doing so is worth sacrificing tens of thousands of lives due to moral injury. We posit that publicly acknowledging such costs, prior to the decision to deploy troops, will serve to reduce the domestic support for such wars and that it is fundamentally anti-democratic and tyrannical to hide such foreseeable costs from the public when deliberating on possible wars. If such costs are made known, then 254

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the required justification must be more robust and moral injury will be abated; if more robust justification cannot be given, then, again, leading the nation into a war which lacks perceived justification among citizens is anti-democratic and tyrannical. Unfortunately, anti-democratic and tyrannical do not necessarily entail unjust. We can imagine public officials engaging in the ‘good lie’. These officials might rightly believe that the masses are solely concerned with their own self-interest and not with the pursuit of justice. There might exist a morally urgent situation in the world that requires military intervention yet poses no threat to one’s own country. On the surface, it seems plausible that the morally correct course of action is intervention, even if that means one must lie to their constituents in order to gain support and approval. The problem with this approach is that so long as the masses concern themselves more with self- or national interest than with justice, the true purpose must remain hidden. Theoretically, it strikes us as odd to assert that in order to justify the action we must shroud the true justification. Practically, this should strike us as infeasible: two persons can keep a secret so long as one of them is dead. We, in fact, cannot keep things of such magnitude hidden for very long, especially in the competitive and personal world of politics. Thus, in such a situation, the ‘good lie’ will be justified only if the forecasted costs of the lie, discovered in the form of cases of moral injury, are worth the moral benefit of resolving the morally urgent situation. We posit that limited war can never provide justification for the ‘good lie’. For, where such morally urgent situations appear, they will most likely be the cause of a sovereign power abusing its rights. This need not be an officially recognised state, but to cause and threaten such great harm and destruction to any group of people will require police and military force over the group of people. Thus, the military engagement will be one aimed at reducing or eliminating this sovereign power; that is, it will be total war. In cases in which the situation is not caused by a sovereign power, the presence of the belligerents must be ubiquitous in the given community. Two things can be inferred from this: (1) a great percentage of the community is supporting these belligerents, thus the greater part of the community is not actually at risk; and (2) the military effort to create or 255

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increase the sovereign power of the community will be required for even longer, will be more arduous and more expensive. As such, when the lie cannot be kept hidden (and it cannot be for long), mission-drift will occur and moral injury will stack up. The moral benefits intended are highly unlikely to be worth the cost of the moral injury and suicide epidemics to follow, without even taking into consideration all the other costs of long wars. Thus, with all of the other costs of war, the barrier to achieve proportionality is near insurmountable. If this is the case, then nations must refrain from engaging in limited war. The resort to war must be of last resort in the face of a clear and immediate threat, which is in the face of a belligerent sovereign power. The ramifications regarding international terrorism and humanitarian intervention are unclear: targeted operations against known terrorist leaders are not necessarily ruled out; neither is the provision of military support, in the form of arms and training, to oppressed groups fighting for their freedom against an oppressive state; nor is the prospect of deploying troops to troubled regions in order to secure evacuation hubs and routes for persons and refugees who desire security and freedom. That is, some military solutions to many of the problems we observe and address via limited war may be legitimately addressed, through other means, while eliminating limited war.

Notes 1. Some disagreement exists as to whether moral injury and posttraumatic stress disorder (PTSD) are synonymous; yet, there is little debate in the psychiatric and psychological literature concerning the widely accepted position that, at the very least, PTSD is a type of moral injury. 2. This does not rule out feelings of guilt or shame for things that are not morally vicious, as it is possible that we experience such emotions with regard to trivial matters. 3. In this passage, Rachels uses the term ‘murder’ to denote killing without reasons that the society sees as justified. As Rachels notes, many societies might have permitted and encouraged killing others due to scarcity, threats and so on. This does not affect Rachels’ reasoning regarding intra-society norms and prohibitions against arbitrary killing.

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Moral Injury, Mission-Drift and Limited War 4. Questions remain concerning Marshall’s methods and data. Yet, historians both prior to and post-Marshall reach the same results. Du Picq dealt with the problem of soldiers that choose not to fight, even in the face of imminent death, in his late nineteenth century work, Battle Studies, finding that the problem facing all military campaigns is morale: how to get the men to fight. ‘Man does not enter battle to fight, but for victory. He does everything he can to avoid the first and obtain the second’ (Du Picq 1921: 43). In The Face of Battle, Keegan believes his studies confirm the suspicion that soldiers often choose not to kill (Keegan 1976: 172). We also observe the methods adopted by great powers in and after the Second World War which aimed at increasing firing rates. These methods ranged from Hate-Training during the war (Shephard 2001: 233), to programming and conditioning methods on rifle ranges in the 1950s and 1960s that, by training soldiers to react immediately, mechanically, and without thought, raised the firing rates to over 90 per cent in Vietnam. These radical changes in training and indoctrination indicate an acknowledged problem existed before and during the Second World War. 5. ‘Capt Tim Wilson, an Army Chaplain . . . said he counselled 8 to 10 soldiers a week for combat stress . . . There are usually two things they are dealing with . . . Either being shot at and not wanting to be shot at again, or after shooting someone, asking, “Did I commit murder” or “Is God going to forgive me”’ (Shane 2004). 6. While the rest of this section will explicitly focus on guilt, shame will apply so long as the perceived appraisal of the self by others is substituted for self-appraisal. 7. In his memoir, To Hell and Back, Audie Murphy, the most decorated soldier in American history, provides a stark example of this. Murphy, who had killed countless German soldiers without displaying any signs of remorse or uneasiness, and had spent years around freshly killed corpses, tells of killing a German sniper at close range: close enough to describe the German’s eye colour. Having killed the sniper, Murphy reports, ‘I suddenly felt like vomiting’ (Murphy 1977: 215). 8. Yet, in cultures in which cows are revered as sacred and such prohibitions do exist and are ingrained, we should expect to find feelings of guilt if one kills a cow without any justifying reasons. 9. ‘I later discover that such mental confusion is common among new men. In the training areas we talked toughly, thought toughly; and finally we believed we really were tough. But it is not easy to shed the idea that human life is sacred’ (Murphy 1977: 11).

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Force Short of War in Modern Conflict 10. Whether the agreement is coerced is neither in question nor problematic: of course it is coercive. Yet, the coercion may be justified; and there must exist, if just war theory is to be coherent, a distinction between justified coercion and unjustified coercion. 11. If threats happen to be eliminated without that which threatens having been identified, it is more correct to say the threat was eliminated than we eliminated the threat; that is, we lucked out. 12. General Stanley McChrystal, in remarks made on 4 March 2016 at A Call for Backup, the Kansas City Missouri Police Foundation’s annual benefit, made this very clear, asserting that the easiest way to achieve military victory and eliminate the risks to one’s own soldiers is to resort to overwhelming force. 13. By ‘decisive’, it is never clear in limited war that in killing a perceived enemy combatant, holding elections, building schools, training local army and police, and so on that one is taking a step toward the desired resolution of the war. However, in total war, it is clear that with every enemy combatant killed and every piece of terrain seized, the desired resolution becomes more realisable, because such combatants and terrain are manifestations of the sovereign power which the war effort itself aims to weaken. 14. The violation of the principles of warfare in limited war is not limited to the first two. Of the nine principles, limited war reasoning leads to the violation of seven of the nine: mass, objective, offensive, surprise, manoeuvre, security and simplicity. 15. ‘As men draw near it becomes extremely difficult to deny their humanity. Looking in a man’s face, seeing his eyes and his fear, eliminate denial. At this range the interpersonal nature of the killing has shifted. Instead of shooting at a uniform and killing a generalised enemy, now the killer must shoot at a person and kill a specific individual’ (Grossman 1996: 119); ‘gunpowder battles were already to a marked degree more impersonal than those of the age of edged weapons. The wearing of uniforms, however variegated, however splendid, diminished the individual identity of the combatants . . .’ (Keegan 1976: 327). 16. The acceptance of these raids, by the American public, can largely be attributed to the belief that victory was absolutely necessary, combined with Major Alexander P. DeSeversky’s Victory through Air Power, which argued that targeting industrial centres in the midst of civilian cities was the only way that victory could be guaranteed. While most Americans would not have picked up the book, ‘the material in [the] book . . . appeared . . . in the American

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Moral Injury, Mission-Drift and Limited War Mercury, The Atlantic Monthly, The American Magazine, Flying and Popular Aviation, Look, Coronet, Reader’s Digest, Town and Country’ (DeSeversky 1942: vi). Moreover, Disney adapted the book into an animated movie for mass consumption. 17. It should be noted, though, that a spike in Vietnam veteran suicide rates occurred during the Gulf War as these veterans became retraumatised during the course of the war (Shay 1994: 186; Sherman 2015: 46) 18. President Lyndon B. Johnson, speech ‘Peace Without Conquest’, given 7 April 1965 at Johns Hopkins University

References Bell, Jordan B. and Elle C. Nye (2007), ‘Specific Symptoms Predict Suicidal Ideation in Vietnam Combat Veterans with Chronic Post-Traumatic Stress Disorder’, Military Medicine, 172: 11, 1144–7. Breslin, Patricia, Han K. Kang, Yvonne Lee, Vicki Burt and Barclay M. Shepard (1988), ‘Proportionate Mortality Study of US Army and US Marine Corps Veterans of the Vietnam War’, Journal of Occupational Medicine, 30: 5, 412–19. DeSeversky, Alexander P. (1942), Victory through Air Power, New York: Simon and Schuster. Du Picq, Ardant (1921), Battle Studies: Ancient and Modern Battle, New York: The MacMillan Company. Fehrenbach, T. R. (1963), This Kind of War, Washington, DC: Potomac Books. Fontana, Alan and Robert Rosenheck (1999), ‘A Model of War Zone Stressors and Posttraumatic Stress Disorder’, Journal of Traumatic Stress, 12: 1, 111–26. Fox News (2007), ‘Bush Warns of Iran’s Influence over Iraq’, Fox News, 29 August, (last accessed 3 August 2018). Fussell, Paul (1989a), ‘The Real War’, Atlantic Monthly, August, 32–9. Fussell, Paul (1989b), Wartime: Understanding and Behavior in the Second World War, New York: Oxford University Press. Gabriel, Richard (1987), No More Heroes: Madness and Psychiatry In War, London: Macmillan. Grossman, Dave (1996), On Killing, New York: Back Bay Books. Hendin, Hebert and Ann Pollinger Haas (1991), ‘Suicide and Guilt as Manifestations of PTSD in Vietnam Combat Veterans’, American Journal of Psychiatry, 148: 5, 586–91.

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Force Short of War in Modern Conflict Hyer, Lee, Marilyn G. Woods, Edward W. McCranie and Patrick A. Boudewyns (1990), ‘Suicidal Behavior among Chronic Vietnam Theatre Veterans with PTSD’, Journal of Clinical Psychology, 46: 6, 713–21. Keegan, John (1976), The Face of Battle, New York: Penguin Books. Maguen, Shira, Barbara A. Lucenko, Mark A. Reger, Gregory A. Gahm, Brett T. Litz, Karen H. Seal, Sara J. Knight and Charles R. Marmar (2010), ‘The Impact of Reported Direct and Indirect Killing on Mental Health Symptoms in Iraq War Veterans’, Journal of Traumatic Stress, 23: 1, 86–90. Maguen, Shira, David D. Luxton, Nancy A. Skopp, Gregory A. Gahm, Mark A. Reger, Thomas J. Metzler and Charles R. Marmar (2011), ‘Killing in Combat, Mental Health Symptoms, and Suicidal Ideation in Iraq War Veterans’, Journal of Anxiety Disorders, 25: 4, 563–7. Maguen, Shira, Thomas J. Metzler, Jeane Bosch, Charles R. Marmar, Sara J. Knight and Thomas C. Neylan (2012), ‘Killing in Combat May Be Independently Associated with Suicidal Ideation’, Depression and Anxiety, 29: 11, 918–23. Maguen, Shira, Erin Madden, Jeane Bosch, Isaac Galatzer-Levy, Sara J. Knight, Brett T. Liz, Charles R. Marmar and Shannon E. McCaslin (2013), ‘Killing and Latent Classes of PTSD Symptoms in Iraq and Afghanistan Veterans’, Journal of Affective Disorders, 145: 3, 344–8. Marshall, S. L. A. (1947), Men against Fire: The Problem of Battle Command, Norman: University of Oklahoma Press. Murphy, Audie (1977), To Hell and Back, New York: Picador. Rachels, James (2003), The Elements of Moral Philosophy, New York: McGraw-Hill. Rice, Timothy R. and L. Sher (2013), ‘Killing in Combat and Suicide Risk’, European Psychiatry, 28: 4, 261. Sanger, David E. (2001), ‘A New, Uneasy Burden’, The New York Times, 12 October, (last accessed 3 August 2018). Shane, Scott (2004), ‘A Deluge of Troubled Soldiers Is in the Offing, Experts Predict’, The New York Times, 16 December, (last accessed 3 August 2018).

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Moral Injury, Mission-Drift and Limited War Shay, Jonathan (1994), Achilles in Vietnam: Combat Trauma and the Undoing of Character, New York: Scribner. Shay, Jonathan (2002), Odysseus in America, New York: Scribner. Shephard, Ben (2001), A War of Nerves: Soldiers and Psychiatrists in the Twentieth Century, Cambridge, MA: Harvard University Press. Sherman, Nancy (2015), Afterwar, New York: Oxford University Press.

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13 Pacifism and Targeted Killing as Force Short of War

Nicholas Parkin

Introduction Anti-war pacifism eschews modern war as a means of attaining peace. It holds war to be not only evil and supremely harmful, but also, on balance, morally wrong. But what about force short of war? The aim of this paper is to analyse targeted killing, a specific form of force short of war, from an anti-war pacifist perspective, or, more specifically, from two related but distinct pacifist perspectives: conditional and contingent. Conditional pacifism deems war to be unjustified if the condition that innocent persons are killed in war is satisfied. Since this condition is always fulfilled, conditional pacifism implies the impermissibility of modern war1 (from here on ‘war’). Contingent pacifism concedes that war would be morally acceptable if its harms were sufficiently outweighed by its benefits, but maintains that no (or very few) wars meet this criterion. The empirical reality of war is such that it cannot be justified, because it harms too many innocents in proportion to the harm it prevents.2 Pacifists’ treatment of targeted killing short of war should thus concentrate on the harm it does to innocents. Conditional pacifists should focus on whether targeted killing kills innocents, while contingent pacifists should focus on whether the harm it does to innocents is disproportionate to its benefits. ‘Targeted killing’, as I mean it here, occurs when a person or group is intentionally and premeditatedly attacked with limited 262

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force, outside war, by or on behalf of a political community. It includes unmanned aerial vehicle (or ‘drone’) strikes, limited precision-guided missile strikes and assassinations. Targeted killing fits into the wider category of force short of war and covers a large proportion of that wider category. If war is actual (not merely threatened), intentional and includes widespread armed conflict between political communities (Orend 2006: 7), then force short of war is something short of that. It can refer both to acts and contexts short of war and is distinguished from war in terms of the amount of force used; that is, it lacks war’s ‘unpredictable and often catastrophic consequences’ (Walzer 2006: xvi). This paper addresses targeted killing specifically and force short of war generally. The primary issue for the just war tradition centres on whether to morally assess instances of force short of war using traditional or new and specific criteria. Calls for the establishment of a specific moral account of force short of war, a ‘jus ad vim’, have focused on the idea that some political acts of violence cannot, or ought not, be assessed using standard jus ad bellum and jus in bello criteria (Walzer 2006: xiv–xvi; Brunstetter and Braun 2013). Others have argued that a jus ad vim is unnecessary and may even result in increased harm. They insist using standard just war principles to analyse force short of war (Coady 2008: 5–8; Frowe 2016). Weighing in favour of a jus ad vim is the tradition’s apparent desire to restrict as much as possible the ‘moral exceptionalism’ that applies to the justificatory language of war. Weighing against it is the worry that the necessity criterion for force short of war might be significantly lower than that of war, based on the notion that it causes less harm, leading to an increase in ‘justified’ political violence.3 Pacifists worry about this moral exceptionalism used to justify war. Why, they ask, should large-scale political violence be treated any different, morally speaking, to other forms of violence? So in this context they are less concerned with which set of just war principles should be used to assess force short of war, than with the issue of whether force short of war can be justified in the first place, as a limited form of political violence. In what follows I first outline the conditional and contingent pacifist positions in terms of their views on war, then apply these positions to targeted killing and the specific moral issue of the harm that it does to innocents, 263

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before briefly discussing the attractiveness of targeted killing as a means of avoiding war and the greater attractiveness of nonviolent alternatives as a means of avoiding either. Conditional and contingent pacifism both reject war, but differ in their respective routes to that conclusion. I shall thus try to give them their equal and separate due. Moreover, since there are no definitive versions of either of these positions, the topics, interpretations and arguments that follow are merely my own. I do not profess to represent all pacifists, or even some of them; these are my views, for better or worse.

Conditional and contingent pacifism Conditional pacifism typically argues that war cannot be justified because the means necessary to prosecuting war are unjustifiable and if the necessary means to an end are unjustifiable, then that end cannot be justifiably pursued. As Robert Holmes puts it, a war ‘obviously cannot be just if one is unjustified in entering upon it in the first place, but neither can it be just, however just the cause and right intention, if it utilises indefensible means’ (Holmes 1989: 175). Conditional pacifism’s general stance is that war is unjustified if the condition that it kills innocent persons (or ‘innocents’) is satisfied and since war does inevitably kill many innocents, war is unjustified. This position rests on three main contentions. The first is that many innocents are inevitably harmed or killed in war. Roughly, pacifists tend to define innocence in war as it is defined domestically, in terms of moral responsibility. They generally agree with so-called ‘revisionist’ just war theorists who argue that innocence is determined not by role, but rather by responsibility (or lack thereof) for wrongdoing.4 In war, innocents are those who, roughly, are not unjustly harming or threatening to harm, nor knowingly helping (to some relevantly sufficient degree) others to unjustly harm or threaten to harm. A rights-based approach to innocence treats it as a right not to be harmed. It is at least prima facie wrong to attack, harm or kill innocents, because they have done nothing to lose their rights not to be attacked, harmed or killed. A person’s right not to be harmed implies that others have a corresponding duty not to harm her; it is standardly taken that by unjustly 264

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violating this duty, we may lose our own right not to be harmed and thus, in this specific sense, our innocence. Non-innocent persons (or ‘non-innocents’), then, have done something to cause them to lose those rights; they are sufficiently responsible for some wrongdoing that causes their loss of innocence. Conditional pacifism holds that war wrongfully kills many innocents, violating the duty not to kill them and thus precluding justified war. Who are ‘the innocent’ in war? Most agree that most civilians are relevantly innocent, since they do not contribute to an unjust threat in any sufficiently meaningful way (a few civilians clearly support, in a meaningful way, those who fight). Many combatants are also, arguably, relevantly innocent. Combatants on a just side are generally held to be innocent (so long as they fight justly), since they act in justified self- or other-defence. Combatants on an unjust side pose an unjust threat to innocents on the just side and thus appear to be non-innocent, but some unjust combatants may in fact be relevantly innocent (and excused from wrongdoing) because they lack the requisite level of responsibility for their side’s threat, due to a lack of sufficient agency or threat. But this is not the end of the story, because many think that innocence does not entirely cohere with liability to be killed in war. That is, some innocents may be liable to be killed (or ‘liable’) in spite of their innocence. I take liability to mean that someone is liable to attack if she would not be wronged by that attack (McMahan 2009b: 8). So-called ‘unjust aggressors’ (who unjustly and culpably aggress), almost all agree, are liable, for reasons just mentioned. Non-innocent combatants are evidently unjust aggressors (most obviously those on an unjust side, but perhaps also those on a just side, if they also pose an unjust threat to innocents (Steinhoff 2012)). ‘Innocent bystanders’ (who do not aggress), almost all agree, are non-liable, for reasons also just mentioned. Most civilians fit easily into this category. It is difficult to imagine how more than a few civilians could unjustly threaten our existence such that they should be liable, even in democratic societies and certainly in non-democratic ones. But some have argued that many civilians may in fact be liable in democratic societies (Green 1992). Even if some civilians were liable, however, attacking them would kill vastly disproportionate numbers of innocent and non-liable civilians. I shall, with what I take to be good reason, consider virtually all civilians to be non-liable.5 265

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‘Innocent aggressors’ (who unjustly but non-culpably aggress) and ‘innocent threats’ (who non-culpably pose an unjust threat) are the subject of much debate. These categories might include non-culpable but unjustly aggressing combatants on either side of a war. Some think it permissible to kill innocent aggressors and threats in self- or other-defence (when their existence clashes with a victim’s) (Thomson 1991; Uniacke 1994; Steinhoff 2007: 61–108), while others argue that this is, in general, mistaken (Otsuka 1994; Norman 1995: 120–8). Liable or not, many innocent aggressors and threats might have ‘grounds for complaint’ if killed, or at the very least grounds to expect us to regret their deaths. The moral status of these categories in war matters very much, but space does not allow me to further discuss this. Since civilian death is the most troubling aspect of targeted killing, I focus mainly on that here. In what follows, I use the term ‘innocent’ to describe those who would be wronged if killed, while noting that just who would be wronged remains an open question. War harms many innocents, not only by killing them, but also by causing severe psychological harm, damage to public infrastructure, private property and the environment, and so on, producing pain and hardship that endures long after a war has ended. The second contention of conditional pacifism is that the prohibition on killing the innocent is sufficiently strong so as to prohibit war fought to save innocents. While we have duties both to not kill and to save, the former is substantially stronger, overriding or outweighing the latter in cases where both duties cannot be fulfilled. This claim is predicated on a strong distinction between killing and letting die, or between mediated and unmediated consequences (we are morally responsible for the things that we directly cause, but much less so for those caused by others). So we are responsible for innocent deaths that we cause, but significantly less so for the innocent deaths caused by others, should we fail to prevent them (Holmes 1989: 201–11). The third contention is that intention bears little or no relevance to permissibility (thereby rejecting the ‘doctrine of double-effect’). It does not matter whether innocents are killed intentionally or merely foreseeably; what matters is that they are killed. If so, the unintended yet foreseeable casualties of war – which comprise the majority of war’s harms – must count against the permissibility of war. That one’s intentions do not much matter in these cases is an 266

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idea held by many (Thomson 2008; Scanlon 2008). Others think that intention matters a great deal when determining the moral status of actions (McMahan 2009a). Critics of conditional pacifism argue that it sets the presumption against killing (relative to letting die) at an implausibly high level and that this presumption can be overridden if killing innocents were the only means of preventing a larger number of innocents from being killed. Contingent pacifism remains open to this possibility (and thus, contra conditional pacifism, open to the idea that ends can sometimes justify means). It proposes that killing innocents is not always morally wrong, all-things-considered; innocents may be killed if doing so is the only means of preventing some sufficiently greater harm. But it also argues that it is extremely unlikely that war can ever be justified in this way, because the threshold at which the presumption against killing innocents could be overridden is very high. As Larry May argues, ‘war as we have known it has not been, and seemingly cannot be, waged in a way that is morally acceptable’ (May 2008: 25–6); war is continently prohibited. Contingent pacifism focuses on proportionality – arguing that the harms of war, even when ‘just cause’ is satisfied, are disproportionate to its benefits.6 Contingent pacifism relies on the same three contentions as conditional pacifism does, but approaches them somewhat differently. The first is that many innocents are killed in war, where contingent pacifism rests more heavily on the ‘many’, due to its claims on proportionality. The second contention is the distinction between killing and letting die, as discussed above. Contingent pacifism need not maintain such a strong distinction as conditional pacifism does, since it admits that it is possible that the presumption against killing could be overridden by a requirement to save. These two contentions work together – the stronger the distinction between killing and letting die, and the more innocents killed in war, the more innocents must be saved for war to be justified. The third contention is that intention bears little or no relevance to permissibility, as discussed above. Some argue that pacifists exaggerate the harmfulness of war by exaggerating its harmfulness to innocents, or that the distinction between killing and letting die is weak enough to allow for war’s harms to be justified in virtue of the harms it prevents, or that intention does bear relevance to permissibility (or a combination of all 267

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three claims). A pacifist case against war depends on the answers to these contentious issues. The just war tradition seems more likely to take contingent pacifism seriously, although conditional pacifism has arguably made more of an impact on the contemporary debate. The tradition thinks that war can sometimes be ‘worth it’, morally speaking, if it is the only means of preventing something worse. Conversely, pacifists think that war’s harms cannot be overridden by its benefits, due to either conditional requirements or contingent facts. I do not discuss here the issue of whether pacifists are right about the concept of innocence, the distinction between killing and letting die and the relevance of intention to permissibility, but rather try to interpret and assess targeted killing as force short of war through a ‘pacifist lens’.

Targeted killing, innocents and proportionality For conditional pacifism the justifiability of force short of war is conditional upon whether it harms innocents or not. So we must determine whether targeted killing harms innocents. For contingent pacifism the justifiability of force short of war depends on whether it causes disproportionate harm to innocents. So in addition to whether targeted killing harms innocents, we must also determine whether its harms (perhaps including ‘intangible harms’ (Robinson 1975)) are sufficiently outweighed by its benefits. How does the innocent/non-innocent distinction apply to targeted killing in situations short of war? Outside war, the combatant/non-combatant distinction loses much of its relevance. But legitimate targets may still be combatants (or ‘militants’) in some revised sense, due to their role in planning or prosecuting some attack (certainly the United States’ ‘war on terror’ treats them as such). The innocent/non-innocent distinction quite clearly still applies in situations short of war, based on standard conceptions of morality. Hence some persons, combatant or not, could qualify as non-innocent by unjustly attacking or threatening to attack others. I shall assume, for argument’s sake, that correctly identified non-innocent targets can be prima facie justifiably killed by targeted killing short of war, because of the unjust threat that they pose to others. I say prima facie because conditional and contingent pacifism will reject any attack on 268

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non-innocents that also kills innocents, or a disproportionate number of innocents, respectively, even when other conditions such as just cause, last resort and so on are satisfied. As previously mentioned, when determining whether targeted killing harms innocents I shall focus primarily on civilians, who I take to be innocent. In doing so I note that the presumption against targeted killing would increase if it killed any innocent combatants. So can the intended and foreseen harms of targeted killing be restricted to non-innocents? As mentioned, by ‘targeted killing’, I mean drone strikes, limited precision-guided missile strikes and assassinations. Although I discuss assassination at the end of this section, the following discussion focuses mainly on drone strikes, for two reasons. The first is that drone strikes are more accurate and less harmful to civilians than larger precision-guided missile strikes; thus drone strikes are easier to justify and a greater challenge to the pacifist presumption against political violence. The second is simply that drone strikes are the most common form of targeted killing (and force short of war) referred to in the literature on this topic. An excellent example of a sustained targeted killing campaign is the United States’ drone campaign in Northwest Pakistan which began in 2004. Its attacks occur outside war and fairly accurate data on the campaign is relatively accessible. The attacks occur in rural areas, reducing the risk of killing civilians, making them more likely to be justifiable compared to those in urban areas. One way of analysing the harmfulness of drone attacks to innocents is to determine how many of them kill civilians. Another way is to calculate what proportion of the total number of people they kill are civilians. The two best data sources on the Pakistan attacks are provided by the New America Foundation and the Bureau of Investigative Journalism. The New America Foundation (2016) reports that there have been 402 drone strikes in Pakistan that have resulted in deaths. Of those attacks, 320 killed militants only (a mixture of al-Qaeda, Pakistan Taliban, Haqqani Network and others) and 82 killed civilians, meaning that 20 per cent of those attacks killed civilians. According to The Bureau of Investigative Journalism (2016), there have been 423 strikes, of which 288 killed militants only and 135 killed civilians, meaning that 32 per cent of those attacks killed civilians. So a high proportion of drone attacks in Pakistan have killed civilians. 269

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The New America Foundation (2016) estimates that the Pakistan strikes have killed 2,282–3,623 people. Of that number, 255–315 were civilians and 176–278 were unknown. Averaging these high and low estimates, 10 per cent of those killed were civilians, or 17 per cent if we count the ‘unknown’ as civilians (which they most likely were). The Bureau of Investigative Journalism (2016) estimates that the strikes have killed 2,496–3,998 people, of which 423–965 were civilians. Averaging these high and low estimates, 21 per cent of those killed were civilians. A high proportion of the people killed by drone attacks in Pakistan were civilians.7 Moreover, the harmfulness of these attacks to civilians (and thus innocents) is most likely understated, given the United States government’s preference for counting all military-age males killed as combatants, in the absence of explicit intelligence proving them otherwise (Becker and Shane 2012). The imprecision of the numbers is startling in itself. It is important to note that the harmfulness of these strikes has changed over time – in 2006 around 95 per cent of those killed were civilians; in 2010, around 15 per cent; and since the beginning of 2013, only 2 per cent. This is due to a combination of technological advancements (surveillance and accuracy) and a decision to attack more specific targets (including vehicles) with smaller missiles, motivated by public concern with the high numbers of civilian deaths in the campaign’s early years. But a campaign of targeted killing short of war must be morally assessed in its entirety, just as war must be. And the Pakistan campaign, as a clear example of targeted killing, has predictably and consistently killed innocents. There is good reason to believe that a targeted killing campaign of this nature elsewhere would produce similar results, or worse, given that many other places are more densely populated. The statistics – the number of attacks in which civilians are killed and the percentage of overall deaths that are civilians – and the fact, therefore, that every attack carries a high risk of killing innocents, mean that conditional pacifists should find this form of force short of war unacceptable. Contingent pacifists, however, might nevertheless accept force short of war if they think it to be proportionately harmless compared to its benefits. Can the benefits of targeted killing sufficiently outweigh its harms? 270

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Assessing the proportionality of targeted killing requires an analysis of the harm that it causes and the harm that it prevents. I have already outlined some of the harms that targeted killing causes; let us examine this in more detail. I mentioned the number of civilians killed in drone strikes in Northwest Pakistan, which when compared to the number of militants killed gives us a starting point for a proportionality calculation. Between 10 and 21 per cent of the total killed is a high proportion under any reading. A number of factors mean that civilians are likely to be killed in any sustained campaign of targeted killing short of war. The targets of targeted killing are often ‘informal’, living amongst civilians, without uniforms, making them harder to distinguish from civilians. This is especially problematic in urban areas and when combatants use ‘human shields’. Intelligence errors also cause many civilian deaths. And improved precision does not necessarily protect civilians – if anything, improved precision increases the likelihood of leaders turning to targeted killing even when doing so risks killing innocents, given that it can be used without risk to their own combatants, a very politically attractive feature (White 2007: 196–7; Enemark 2014: 378). I already mentioned the counting of all military-age males killed as militants; this likely to occur in similar cases, due to the difficulty in identifying the dead, as well as the public pressure on governments to decrease the proportionate harmfulness of their attacks. Not only may they not know who they kill, but even if they do, they may think they have good cause to lie. Targeted killing short of war also harms civilians in other important ways. Damage to infrastructure must be included in any proportionality equation, since interruptions to power, water, food, housing and sanitation supply can cause significant harm and death, and often endures long after the attacks. In addition to their grief, the families of those killed often lose their primary income earner (Cavallaro et al. 2012: 78), increasing the harm of those deaths, whether militant or civilian. The campaign of targeted killing in Northwest Pakistan, including the constant presence of drones, has caused significant economic, social and cultural disruptions and ‘considerable and under-accounted for harm to the daily lives of ordinary civilians, beyond death and physical injury’. In particular, it has caused severe psychological harm to those living in attacked areas, including ‘substantial 271

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levels of fear and stress’, including ‘anticipatory anxiety’ and post-traumatic stress (Cavallaro et al. 2012: vii, 80–101). Importantly, these civilians are unable to remove themselves from these dangers (Enemark 2014: 378). The harms of targeted killing are significant, widespread, supported by evidence and, most importantly, highly predictable. They must be counted when making any proportionality calculation, no matter how long after the actual attacks they manifest or endure. This increases the proportionality presumption against this form of political violence. Evidence suggests that sustained campaigns of targeted killing short of war cause significant harm to innocents. But what harm might they prevent? This is a difficult question to answer, not least because resorts to targeted killing are usually undertaken in response to fairly intangible threats, in terms of both probability and imminence, at least sufficiently intangible so as to rule out justified resort to war. This is, of course, the main reason that targeted killing is employed in the first place and has led some to argue that we should permit proportionately less harm to innocents caused by force short of war than by war, since ‘just causes’ for force short of war are often less ‘serious’ than those for war (Braun and Brunstetter 2013: 318). The general objective that currently motivates targeted killing is the destruction, or at least disruption and reduction of effectiveness, of terror organisations planning to attack civilians. The threat these organisations pose is not ‘imminent’ under any standard interpretation; these strikes are, therefore, part of a wider objective of harm prevention that aims to kill those who wish to cause that harm, whenever and wherever that may be.8 Innocents’ rights supposedly protected by this general campaign include not only rights not to be harmed, but also rights to freedom of thought and from fear. But as May puts it, for any attack to be proportionate ‘there must be clear evidence that the killing must take place now’ (May 2013: 58–9). The effectiveness of drone attacks has been questioned by many. They have indeed killed many militant leaders, reducing the experience and tactical effectiveness of their organisations. But the effectiveness of killing leaders in this context is contested (Cavallaro et al. 2012: 125–31; Enemark 2013: 331). Their replacements might be equally experienced or skilled and even if killing them is effective, this effectiveness must be measured against the harm that 272

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killing them causes. They are generally very hard to kill without killing others. Attackers have been more willing to accept civilian casualties in attacks that target high-ranking leaders. Moreover, according to the New America Foundation (2016), only fifty-eight known militant leaders have been killed in drone strikes in Pakistan, just 2 per cent of the total deaths. The others killed have been either civilians or low-level militants, who, evidence suggests, have neither the requisite tools nor the necessary access to pose a serious threat. That is, whether or not they are members of an unjust organisation, it is far from clear that they are worth targeting when doing so risks killing innocents, since their deaths may not make much of a difference anyway. This also raises an issue of due process, since, as May argues, ‘the targeting of a particular terrorist suspect does not automatically mean that due process concerns have been allayed simply by a showing that there is some reason to believe that the targeted individual is a terrorist’ (May 2013: 55). The effectiveness of these campaigns is certainly questionable, at the very least, which makes it harder to justify the innocents deaths they cause. Targeted attacks, especially those that kill civilians, can also create, or increase, hatred towards the attackers. The strikes in Pakistan have created significant anti-American sentiment throughout the wider region. They also appear to have aided terror organisations’ recruitment programmes and have motivated attacks on military and civilian targets (Cavallaro et al. 2012: 131–7). Militants can use the strikes, especially those that kill civilians, as a demonstration of the significant and unjust threat posed by their enemy. Even strikes that only kill militants may in fact cause more harm than good, since many in the region are likely to believe, due to a significant ‘information gap’, that their compatriots fight a just war and their deaths may thus motivate them to join that cause. If so, blame for the harms they subsequently cause must, if only in a mediated sense, be partially apportioned to the attacks that motivated their recruitment or increased support. Presumption against any political violence increases as the harm it is designed to prevent becomes proportionately less certain compared to the harm caused. When the benefits of actions that cause certain harm to innocents are far removed and uncertain, one should not cause that certain harm. The apparent lack of 273

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imminent threat, uncertainty of harm prevention and possibility of creating future harm increase the presumption against targeted killing and thus against any proportionality calculation in its favour. This is also true of war (its benefits are much less certain than its harms), but more so of targeted killing, since its benefits are uncertain and intangible. Any decent moral system finds it difficult to justify killing innocents to prevent possible harm to other innocents. I think, therefore, that contingent pacifists should presume against the justifiability of targeted killing until it can be shown not only that it will not predictably harm many innocents, but also that it will almost certainly prevent some sufficiently greater harm to others. This is not to say that this presumption cannot be overcome, only that the burden of proof should rest with those who wish to do so. Assassination seems to be prima facie easier to justify as a form of targeted killing short of war than drone strikes. Assassination is the targeted killing of a political leader, performed by special forces or other means, such as a targeted missile strike. As Andrew Altman and Christopher Wellman argue, assassination might be permissible when performed on a legitimate target (that is, one who is unjustly aggressing or threatening the same innocents) and ‘the risk to human rights is not disproportionate to the rights violations that one can reasonably expect to avert’ (Altman and Wellman 2008: 253). A one-off attack might be justified if the target is an important and unjust leader and no innocents, or a sufficiently low number of innocents are killed, according to conditional and contingent pacifism respectively. Assassination of an unjust leader currently engaged in harm to innocents is not murder, but rather other-defence (it is bizarre that some hold such killing to be unjust and yet the mass-scale killing in war to be just) (Aloyo 2013; Allen-Gunasekera 2015).9 Pacifists take no issue with harming non-innocent aggressors to save innocents. This might apply not only to leaders at the very top, but also a number of individuals high up in the ‘chain of command’. Assassination by missile strike will encounter the same restrictions and difficulties discussed above, with the additional benefit of not being a sustained threat to innocents. A one-off missile strike might be acceptable to contingent pacifists, so long as it is very likely to prevent an imminent threat (which in no way can be taken for granted), but conditional pacifists are likely to reject this 274

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same missile strike if there is a good chance that innocents will be killed. Assassination by a small team ‘on the ground’, however, could be performed without much threat to innocents, so long as sufficient planning is undertaken and harm-prevention tactics are adopted. The 2011 raid that killed Osama bin Laden in Abbottabad, Pakistan, shows that this can be accomplished, but this style of assassination is likely to be only used against top targets, due to the amount of surveillance and planning required. This very limited violence would at least better satisfy the aforementioned requisite level of due process that is necessary for justified political violence, which is rarely followed in other forms of targeted killing. Espionage-style assassination of a confirmed unjust threat, by, say, sniper or poison, could quite clearly also be justified, due to the lack of risk doing so poses to innocents. It all depends on the rights violations caused relative to the expected rights violations prevented; only the most ‘targeted’ versions of force short of war appear acceptable to pacifists.

War and ‘force short of force short of war’ I have as yet failed to discuss a very important harm that force short of war might be used to prevent – war itself. That is, it could be used to prevent the need for future war, by pre-emptively killing those who plan to either start or act in ways that will necessitate war. One could argue that although targeted killing is harmful to innocents, it is less harmful than war and is therefore justified – as a lesser evil – when it is the only means of preventing war. We might even think that contingent pacifists have extra reason to be swayed by such an argument, since they are opposed not to killing per se, but rather to war, which they should thus wish to avoid as much as possible. It certainly seems that targeted killing short of war is a much less harmful alternative to war, due primarily to increased accuracy and restraint.10 Avery Plaw, for example, states that the civilian death rate of drone strikes ‘looks significantly better than alternative actions’ (Plaw 2013: 150) and Bradley Strawser even suggests that this creates a ‘moral imperative’ to use drones (Strawser 2010). War is extremely harmful. Approximately 87 million people were killed in wars in the twentieth century alone – 33 million 275

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soldiers and 54 million civilians (as actual by-products of hostilities, not including other effects of war such as genocide, famine, disease and political unrest) (Brzezinski 1993: 8–10). And between 184,000 and 212,000 Afghan, Iraqi and Pakistani civilians have died violent deaths as a direct result of the recent wars in those places (Watson Institute 2016). Targeted killing short of war is significantly less harmful to civilians and thus to innocents. Michael Walzer argues that the relative harmlessness of force short of war means that its justificatory threshold, particular in terms of just cause and last resort, should be lower than war (Walzer 2006: xiv). Thus targeted killing might be justified as a lesser evil. But pacifists should be wary of any such justification, for several reasons. While targeted killing is less harmful than war, it is questionable whether it is proportionately so. First, as discussed above, its purported benefits are neither immediate nor clear. The end towards which killing militants in Pakistan is a means is a broad one; hence it is difficult to compare the harms and benefits of the campaign, as well as its effectiveness. The further removed an end from the means to it, the harder it is to gauge the effect of the latter on the former. This again raises the issue of trading certain harms for uncertain benefits. Second, targeted killing may simply fail to prevent war; it may prove ineffective. If so, that killing would be in vain and thus disproportionate. If, however, such killing is not in vain and is proportionate, then (if the other conditions are fulfilled) it is justifiable – (objectivist) contingent pacifists must accept this possibility. Nevertheless, while these issues may rest on empirical evidence on a case-by-case basis, contingent pacifists should presume against any political violence and should thus be sceptical of any justification of it, even when performed to prevent war. Another worry is that force short of war can lead to greater harms, perpetuating or escalating a conflict. Targeted killing may cause or increase general insecurity in a region, which may increase the likelihood of war (Brunstetter and Braun 2013: 99). As previously mentioned, it can also increase the resolve of many to engage in terrorist activities or war. Viewing targeted killing as less harmful may also lead to a policy of resorting to it more often, leading to an increase in overall harm, and thus a lower distinction between its harmfulness and that of war (Coady 2008: 93). Going to the 276

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trouble of targeting people in a distant land also suggests to an attacker’s population that doing so is in response to a serious and imminent threat (‘why else would they do it?’), making support for any subsequent political violence, including war, easier to garner. Moreover, the less tangible objectives of targeted killing mean that ‘mission success’ is harder to achieve, since ‘success’ becomes a more abstract notion (there will always be terrorists). Hence targeted killing may continue ‘perpetually’, increasing its overall harmfulness (Enemark 2014: 375). These issues are worrying, and weigh against, morally speaking, any campaign of targeted killing. But again, that is not to say that they can never be outweighed under certain conditions. I would like to make one final point before concluding. The just war tradition holds war to be justified as a last resort only; war may be waged only when less harmful alternatives have been properly considered, or perhaps even tried. It follows that the effectiveness and relative harmlessness of the alternatives affects whether war can be justified. Targeted killing is one of these alternatives – as the effectiveness and relative harmlessness of targeted killing increases, therefore, the justificatory threshold for war as a last resort also increases. So the availability of effective targeted killing increases the moral presumption against war (Aloyo 2013; Allen-Gunasekera 2015). But the last resort criterion also applies to targeted killing (albeit, perhaps, in a revised sense). That is, targeted killing can be justified only when less harmful alternatives have been properly considered, or perhaps even tried. I have argued elsewhere that the last resort criterion of war cannot be properly satisfied if sufficient time and energy has not been put into considering and developing belligerent non-violent alternatives to war (Parkin 2016). This follows from the fact that non-violent resistance can be very effective in repelling (and deterring) unjust aggressors. Historical evidence not only supports this claim, but in fact shows non-violent resistance to be more effective than war at repelling aggression in a variety of circumstances (Chenoweth and Stephan 2011; Parkin 2016). If state and non-state actors were to formally develop non-violent resistance as a defensive tactic, this alternative would be more effective still. I mentioned earlier that pacifists might have extra incentive to avoid war and thus accept less harmful alternatives to it, even if 277

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those alternatives cause some (lesser) harm. But I also argued that they should hold a strong presumption against any political violence that kills innocents, including force short of war. Just as nonviolent resistance should be properly considered before any resort to war, so too should it be considered before any resort to force short of war, including targeted killings. It is unlikely to work in certain situations, including in Northwest Pakistan. But there is evidence that it can work in certain cases. If, in a long-term sense, we are to resort to any political violence with ‘genuine reluctance’ (Coady 2008: 91), non-violent resistance must be properly considered. This includes significant funding and effort into research and training. As part of their humanitarian responsibility, states could fund and facilitate education and training for overseas populations, thereby equipping them with the means to non-violently resist unjust aggressors, lowering the need for political violence and increasing their ability to prosecute what we might call ‘force short of force short of war’.

Conclusion I have argued that both conditional and contingent pacifists should be wary of any challenge to the presumption against political violence that I think grounds their presumption against war. Conditional pacifists will have a very hard time accepting campaigns of targeted killing, such as sustained drone strikes, due to the empirical evidence showing the harm they do to innocents, although they may, under specific conditions, accept one-off instances of targeted assassination. Contingent pacifists are more likely to accept these campaigns, and thus also assassination, but I have argued that their proportionality requirements are unlikely to be satisfied by current sustained versions of targeted killing and hence something will have to change in the future for those requirements to be satisfied. What does the future hold? Increasingly discriminate weapons will continue to be produced and (some) militaries are training their combatants in ethics as well as killing (although the imbalance requires further redressing). Some non-lethal weapons, such as the ‘active denial system’, have been developed and many more 278

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could well be on their way. So there is hope. Crucially, however, attitudes towards harm to innocents (or more euphemistically, ‘collateral damage’) do not seem to be changing, at least among those whose opinions matter most, who seem prepared to accept such harm if it comes with a reduction to the far more politically awkward risk of harm to their own combatants. The potential and largely ignored effectiveness of non-violent resistance raises the threshold of last resort for any political violence, including force short of war. Substantially more research and funding are required in this area if any political violence is to be justifiable in the future. This is because we cannot plausibly claim to have properly considered all of the alternatives to violence in any given situation if we have not bothered to develop those alternatives, at relatively minimal cost (when compared to the development of drones, missiles and so on), before that situation arises. We know that many more conflicts will occur in the future and that some of them may require violence to resolve. So we should do everything in our power, within reason, to create alternatives to that violence and there are many alternatives well within that reason.11

Notes 1. ‘Modern war’ refers to war fought from the late nineteenth century into (at least) the near future, and is characterised by the significant harm it causes to innocents. The pacifisms discussed in this chapter make no claims about wars fought in the distant past. 2. These positions must be distinguished from institutional pacifism, which objects not so much to the fighting of war, but rather to the amassing of military resources and the military itself in the first place, and personal pacifism, which (roughly) takes all personal violence to be unjustified. 3. Force short of war might also be justified as law enforcement, although such justification runs into a host of issues (Braun and Brunstetter 2013; Enemark 2014). 4. For example see (McMahan 2009b: 104–202). Whether this position is ‘revisionist’ at all is the subject of some doubt (Steinhoff 2012: 342–6). Note also that Walzer’s role-based account disagrees with this view (Walzer 2006: 38–9, 144–5), although the arguments

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5.

6.

7.

8.

9. 10.

11.

made here still apply to his account, which holds all civilians to be relevantly innocent. This may mean that many combatants, who contribute no more to war than many civilians, are also non-liable. Seth Lazar argues that this forces a choice between two ‘unpalatable’ options – pacifism and total war – to which a pacifist would presumably respond, ‘so be it’ (Lazar 2010). Contingent pacifism can also be based on the failure of actual wars to satisfy the just war criteria, or on our inability to know whether those criteria can be satisfied (Bazargan 2015: 14–17). According to the Long War Journal (2016), there have been 391 drone strikes, killing 2,955 people, of which 158 were civilians (five per cent). We have reason to doubt the legitimacy of this source’s statistical claims (Cavallaro et al. 2012: 45–7). It could be argued that such killing is preventive as opposed to pre-emptive, which should pose a problem for just war theorists. Arguably, it is not enough that targets plan to attack sometime in the future – they must already be planning an attack. Some (e.g. Whetham 2015: 61–2) still maintain an erroneous distinction between targeted killing and assassination. Interestingly, Daniel Statman has argued that there is an inconsistency in accepting the legitimacy of killing in war whilst rejecting the legitimacy of targeted killing, and thus that ‘a principled objection to targeted killings necessarily entails a pacifist approach to conventional war’ (Statman 2004: 180). Many thanks to Uwe Steinhoff for helpful comments on a previous version of this chapter.

References Allen-Gunasekera, Crystal (2016), ‘Liability and Narrowly Targeted Wars’, Ethical Theory and Moral Practice, 19: 1, 209–23. Aloyo, Eamon (2013), ‘Just Assassinations’, International Theory, 5: 3, 347–81. Altman, Andrew and Christopher Wellman (2008), ‘From Humanitarian Intervention to Assassination: Human Rights and Political Violence’, Ethics, 118: 2, 228–57. Bazargan, Saba (2015), ‘Varieties of Contingent Pacifism’, in Helen Frowe and Gerald Lang (eds), How We Fight, Oxford: Oxford University Press, pp. 1–17. Becker, Jo and Scott Shane (2012), ‘Secret “Kill List” Proves a Test of Obama’s Principles and Will’, The New York Times, 29 May, (last accessed 22 February 2016). Braun, Megan and Daniel R. Brunstetter (2013), ‘Rethinking the Criterion for Assessing CIA-Targeted Killings: Drones, Proportionality and Jus ad vim’, Journal of Military Ethics, 12: 4, 304–24. Brunstetter, Daniel R. and Megan Braun (2013), ‘From Jus ad bellum to Jus ad vim: Recalibrating Our Understanding of the Moral Use of Force’, Ethics & International Affairs, 27: 1, 87–106. Brzezinski, Zbigniew (1993), Out of Control: Global Turmoil on the Eve of the Twenty-First Century, New York: Scribner. Cavallaro, James, Stephan Sonnenberg and Sarah Knuckey (2012), Living Under Drones: Death, Injury and Trauma to Civilians from US Drone Practices in Pakistan, International Human Rights and Conflict Resolution Clinic, Stanford; NYU School of Law. Chenoweth, Erica and Maria J. Stephan (2011), Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict, New York: Columbia University Press. Coady, C. A. J. (2008), Morality and Political Violence, Cambridge: Cambridge University Press. Enemark, Christian (2013), ‘Unmanned Drones and the Ethics of War’, in Fritz Allhoff, Nicholas G. Evans and Adam Henschke (eds), Routledge Handbook of Ethics and War: Just War Theory in the Twenty-First Century, New York: Routledge, pp. 327–337. Enemark, Christian (2014), ‘Drones, Risk, and Perpetual Force’, Ethics & International Affairs, 28: 3, 365–81. Frowe, Helen (2016), ‘On the Redundancy of Jus ad vim: A Response to Daniel Brunstetter and Megan Braun’, Ethics & International Affairs, 30: 1, 117–29. Green, Michael (1992), ‘War, Innocence, and Theories of Sovereignty’, Social Theory and Practice, 18: 1, 39–62. Holmes, Robert L. (1989), On War and Morality, Princeton: Princeton University Press. Lazar, Seth (2010), ‘The Responsibility Dilemma for Killing in War: A Review Essay’, Philosophy and Public Affairs, 38: 2, 180–213. Long War Journal (2016), ‘Pakistan Strikes Data’, (last accessed 15 March 2016). McMahan, Jeff (2009a), ‘Intention, Permissibility, Terrorism, and War’, Philosophical Perspectives, 23: 1, 345–372. McMahan, Jeff (2009b), Killing in War, Oxford: Oxford University Press. May, Larry (2008), Aggression and Crimes against Peace, Cambridge: Cambridge University Press. May, Larry (2013), ‘Targeted Killings and Proportionality in Law’, Journal of International Criminal Justice, 11: 1, 47–63.

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Force Short of War in Modern Conflict New America Foundation (2016), ‘International Security Program: Drone Wars’, (last accessed 15 March 2016). Norman, Richard (1995), Ethics, Killing and War, Cambridge: Cambridge University Press. Orend, Brian (2006), War and International Justice: A Kantian Perspective, Waterloo: Wilfrid Laurier University Press. Otsuka, Michael (1994), ‘Killing the Innocent in Self-Defense’, Philosophy and Public Affairs, 23: 1, 74–94. Parkin, Nicholas (2016), ‘Non-Violent Resistance and Last Resort’, Journal of Military Ethics, 15: 4, 259–74. Plaw, Avery (2013), ‘Counting the Dead: The Proportionality of Predation in Pakistan’, in Bradley Strawser (ed.), Killing by Remote Control: The Ethics of an Unmanned Military, New York: Oxford, pp. 126–53. Robinson, Paul H. (1975), ‘A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability’, UCLA Law Review, 23, 266–92. Scanlon, T. M. (2008), Moral Dimensions: Permissibility, Meaning, Blame, Cambridge, MA: Harvard University Press. Statman, Daniel (2004), ‘Targeted Killing’, Theoretical Inquiries in Law, 5: 1, 179–98. Steinhoff, Uwe (2007), On the Ethics of War and Terrorism, Oxford: Oxford University Press. Steinhoff, Uwe (2012), ‘Rights, Liability, and the Moral Equality of Combatants’, Journal of Ethics, 16: 4, 339–66. Strawser, Bradley Jay (2010), ‘Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles’, Journal of Military Ethics, 9: 4, 342–68. The Bureau of Investigative Journalism (2016), ‘Drone Strikes in Pakistan’, (last accessed 15 March 2016). Thomson, J. J. (1991), ‘Self-Defense’, Philosophy and Public Affairs, 20: 4, 283–310. Thomson, J. J. (2008), ‘Turning the Trolley’, Philosophy and Public Affairs, 36: 4, 359–74. Uniacke, Suzanne (1994), Permissible Killing: The Self-Defence Justification of Homicide, Cambridge: Cambridge University Press. Walzer, Michael (2006), Just and Unjust Wars: A Moral Argument with Historical Illustrations, New York: Basic Books, 4th edn. Watson Institute for International and Public Affairs (2016), ‘Human Costs of War: Direct War Death in Afghanistan, Iraq, and Pakistan, October 2001-April 2015’ (last accessed 25 March 2016.

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Pacifism and Targeted Killing Whetham, David (2015), ‘Targeted Killing: Accountability and Oversight via a Drone Accountability Regime’, Ethics & International Affairs, 29: 1, 59–65. White, Hugh (2007), ‘Civilian Immunity in the Precision-Guidance Age,’ in Igor Primoratz (ed.), Civilian Immunity in War, Oxford: Oxford University Press, pp. 182–200.

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14 In Defence of Jus ad vim: Why We Need a Moral Framework for the Use of Limited Force

Daniel Brunstetter

Introduction Ethical debates about state use of force have long distinguished between the conditions of peace and war, with different ethical frameworks arguably governing each. In the former, the ethical constraints of law enforcement shape the extent to which a state can use force against a suspected criminal, while in the latter the laws of war apply to the use of force against combatants of the enemy’s armed forces. To put it in more germane terms: police officers arresting a criminal are much more restricted in what they can do than what is permissible for soldiers in the context of war. Regarding war, the just war framework is one of the most storied tools of analysis when morally evaluating the use of force. The principles contained with the categories of jus ad bellum are seen as useful in helping to determine when one can morally go to war, while those of jus in bello help us to evaluate what one can ethically do in war. Yet, the adequacy of this framework has recently come into question by so-called revisionist just war thinkers who reject the view that the morality of war is distinct from the morality that governs during peace (McMahan 2009; Frowe 2016). Others suggest that we need to look more at the roles of those using force to understand the ethical implications (Miller 2016), while still others reject the efficacy of ethical uses of force 284

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to resolve conflict altogether (Howes 2010). My research on jus ad vim also addresses the inadequacies of the just war framework, by interrogating the limits of the just war (and law enforcement) frameworks as tools to address threats to international peace and security and by calling for a set of principles calibrated to the use of limited force. The use of limited force challenges the simple dichotomy between peace and war insofar as the term ‘war’ does not adequately capture the full spectrum of lethal force states use to counter international threats (Zenko 2010). In particular, the use of limited force – drone strikes, punitive strikes, limited preventive strikes, setting up and maintaining no-fly zones, special forces raids and peacekeeping missions – are becoming more and more frequent, but it is unclear whether they fall under the morality of war. Scholars have begun to question the very definition of war and with that, the notion of ethics also comes into question. Mary Kaldor talks about so-called ‘new wars’ which blur the distinction between war, organised crime and large-scale violations of human rights, arguing for an ethics called ‘cosmopolitan law enforcement, [which] is somewhere between soldiering and policing’ (Kaldor 2012: 213). Her argument for a new view of law enforcement favours reimagining how we understand the rules that govern the use of violence by clarifying and enforcing existing frameworks, specifically international humanitarian and human rights law. Ian Clark suggests that the challenge of defining war holds even deeper concerns: International society itself, whatever moral philosophers might think, has been greatly exercised by its own negotiation of what ‘counts as war’ and what does not . . . As a result, when we apply ethics to war, we are left to shoot at a constantly moving target. (Clark 2015: 19)

This is important because the rules that govern the use of force distinguish between what is legitimate killing and what is essentially murder. For Clark, the danger is that our ethical thinking be constrained by the rigid categories of violence – war or not war – we use insofar as ‘we are governed by the assumptions that are already imbedded’ in these categories (Clark 2015: 144). Thus 285

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impetus to think outside existing categories. In the words of Rosa Brooks: The international community needs to develop a jus ad vim to occupy the space between war and peace: a law and ethics relating to ongoing but discrete smaller scale uses of force . . . Perhaps we need new international institutions capable of refereeing such uses of force. (Brooks 2014: 99)

There exists a rich scholarship on just war in the twenty-first century that has remained anchored in the historical categories of jus ad bellum, jus in bello and jus post bellum, to explore the ethical issues associated with the use of force. This is because the just war framework provides statesmen with ‘a common normative language to justify their behaviour to others . . . and assess the legitimacy of others’ actions’ (Bellamy 2006: 7). Yet, the blurring of the lines between war and not war discussed above has raised questions about the viability of the traditionalist just war paradigm in certain circumstances – including in contexts of terrorism (Walzer 2007), drone strikes (Brunstetter and Braun 2013), preventive force (Walzer 2006; Doyle 2008; Totten 2010) and humanitarian intervention (Brunstetter 2018a). Let me make it clear that I do not mean to disqualify the just war framework altogether – indeed, my own work has explored its political usefulness in US politics (Brunstetter 2014), while also pointing to some of the shortcomings (Brunstetter and Braun 2011). Rather, the concept of jus ad vim seeks to contribute to the ethical debates about the use force by asking us to look more closely at the dilemmas of limited force. Jus ad vim means, literally, the just use of force and refers to a moral framework calibrated to the use of limited force (what others sometimes refer to as force short of war). As a point of departure, jus ad vim makes the assumption – challenged by some authors in this volume – that limited force is somehow different from war and that this difference warrants reformulating, reimaging and recalibrating the just war frameworks we have, to better take into account the moral dilemmas associated with limited force. This chapter begins by charting the narrative of the emergence of jus ad vim. Not a mere literature review, the act of

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unpacking this narrative highlights the global conditions that brought into question existing just war frameworks, the perceived theoretical lacunae the idea of jus ad vim was proffered to fill and the early concerns of establishing a new, seemingly more permissive, theory. This exercise in the history of ideas is important for two reasons: first, because it identifies how jus ad vim was a critical response to moral concerns in global affairs, and second, because it paints the jus ad vim project as an exercise in line with the critical-historical renegotiation of the just war tradition (Brunstetter and O’Driscoll 2017). I then briefly trace the initial development jus ad vim principles as distinct from jus ad bellum principles, offering insight into what the initial attempt to theorise about jus ad vim set out to accomplish. In the process, I identify the three criticisms levied against jus ad vim – that we do not need a new theory, that it is too permissive and that the probability of escalation principle is contained within other just war principles. In order to push the debate forward, I respond to these criticisms with a defence of jus ad vim as a broad research agenda that investigates the specific moral dilemmas associated with limited force and, in particular, the threat of escalation. I conclude by suggesting that jus ad vim can be not only a language of evaluation, but also a precise language of critique as states use and abuse the weapons available in their arsenals to respond to ever-evolving global threats.

The emergence of jus ad vim The twentieth century saw the re-emergence of the idea that the normal state of international affairs was one of peace, with recourse to the use of force, even on a limited scale, as an exceptional act. The United Nations Charter sought to severely limit recourse to armed force. Article 2 (4) set out a general ban on the use of force by states against other states, while Chapter 7 delineated the two instances when force was justified: when it was sanctioned by the United Nations, or when a state exercised its inherent right to self-defence. This marked a general reversal of the legitimacy of limited force that had characterised the nineteenth century.

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The twentieth century also saw the re-emergence of the salience of just war theory as a lens through which to examine the ethical issues raised by the use of military force. Paul Ramsey’s The Just War: Force and Political Responsibility (Ramsey 1968) and Michael Walzer’s Just and Unjust Wars: A Moral Argument with Historical Illustrations (Walzer 2006, originally published in 1977), both written as philosophical reflections about the Vietnam War, argued the categories of jus ad bellum (the principles governing decision to wage war) and jus in bello (the criteria shaping what one can do in war) should be at the heart of modern statecraft. The significance of just war theory continued through the end of the twentieth century and into the twenty-first century as the choices of statesmen, military leaders and soldiers were influenced by its principles. At the dawn of the War on Terror, Michael Walzer wrote in a famous essay entitled ‘The Triumph of Just War Theory (and the Dangers of Success)’ that: the triumph of just war theory is clear enough; it is amazing how readily military spokesman during the Kosovo and Afghanistan wars used its categories, telling a causal story that justified the war and providing accounts of the battles that emphasised the restraint with which they were being fought. (Walzer 2002: 932)

His point in penning that essay was that the jus ad bellum and jus in bello categories had succeeded in making the sphere of war a moral sphere, as opposed to one where the ends justified any violent means. This was in large part due to the restraint that the principles of just war imposed on the decision to wage war and the ways in which lethal force employed.

A Crisis in Just War Thinking The advent of the United States-led global War on Terror, however, called Walzer’s conclusion into question. Scholars have debated whether US actions satisfied the jus ad bellum principles, the extent to which new conditions required rethinking their meaning and whether a problematic shift in their meaning has occurred. Nicholas Rengger, for example, sees recent interpretations of just war principles, which he views as fundamentally

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about the ‘restraint of war’, as complicit in problematically expanding ‘the scope of justification of the use of force’ in the modern era (Rengger 2013: xii). This controversial renegotiation of the parameters of jus ad bellum and the need to recapture the essence of restraint, marks the context in which theorising about jus ad vim emerged. Scholars have begun to argue that a more calibrated moral theory is needed to navigate the challenges facing statesmen, military leaders and ethicists today. The first to do so was Michael Walzer. When writing the new preface to the fourth edition of his iconic book Just and Unjust Wars in 2006, Walzer was deeply affected by the moral crises of the Bush era, specifically the 2003 Iraq War. Walzer noted, with a critical tone, that the despite what some scholars had argued (for example James Turner Johnson and Jean Bethke Elshtain), the war was not a response to aggression or a humanitarian intervention. It was not (as in 1991) an actual Iraqi attack on a neighbouring state or even an imminent threat of attack; nor was the cause an actual, ongoing massacre. The cause was regime change, directly – which means that the US government was arguing for a significant expansion of the doctrine of jus ad bellum. (Walzer 2006: xiii)

In other words, the Bush Doctrine relaxed the constraints of jus ad bellum by extending the conditions under which war could be justified, which cut against the grain of just war thinking endorsed by Walzer that sought to limit instances when unleashing the dogs of war was justifiable. That being said, Walzer was not so naïve as to think that one should ignore the threat posed to peace and security in the international system by states such as Iraq. He thus went on to argue that: the Iraqi case invites us to think about the use of force-short-of-war; the containment regime of 1991–2003 is only one possible example of this use. Despite the French argument at the UN in 2002 and 2003 that force must always come as a last resort, force-short-of-war obviously comes before war. The argument about jus ad bellum, therefore, needs to be extended to jus ad vim. We urgently need a theory of just and unjust uses of force. (Walzer 2006: xv)

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Walzer’s subsequent discussion of how limited force could have been used to curb the threat of Saddam Hussein’s Iraq and eventually lead to regime change without having to resort to full-scale war peered into a new theoretical era. By distinguishing between measures short of war (such as imposing no-fly zones, pinpoint air/ missile strikes and sanctions) and actual warfare (ground invasion, large-scale bombing campaigns), Walzer demarcated a distinction between limited force and war that invited scholars to think about how the ethical dilemmas and moral requirements differed in each context. A key element of Walzer’s argument was that the just war doctrine did not apply to all the ways force was used in the post 9/11 era. Challenging the ‘standard of just war theory, which Elshtain expounded and defended’ in her polemical book Just War against Terror, Walzer argues in an article entitled ‘On fighting terrorism justly’ that these standards ‘do not always fit the larger war against terror as it has developed since 2002’ (Walzer 2007: 480). Rather than war, he contended that much of the so-called war is police work, while some is ‘the work of Special Forces who stand somewhere between the police and the army’ (Walzer 2007: 481). Here Walzer makes a crucial distinction between zones of peace where the paradigm of law enforcement governs the use of force, zones of war where the principles of just war reign and what he calls the ‘in-between spaces’ such as Yemen and Pakistan, where states do not fully control what goes on within their borders and the moral guidelines are blurred. While war used to be easily defined as a zone of combat where lethal force was justified (to be distinguished from a zone of peace, where it was not), the struggle against terrorism has created these in-between spaces of moral uncertainty where force is used on a limited scale, but war is not declared. Citing an isolated US strike against al-Qaeda in 2002 in Yemen, Walzer asked the critical question of the twenty-first century to date: ‘what standards apply to the secret war against terror?’ (Walzer 2007: 481). Here we see the clear blurring of the lines between war and not war and the emergence of a space where policing seems too restricted but war too permissive. Under the policing paradigm, the state can, as Fernando Tesón argues:

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In Defence of Jus ad vim use lethal force only in very limited circumstances, mostly in self-defence or to protect persons from deadly threats. Beyond that, a suspected criminal is entitled to due process and may not be killed except in execution of a lawful sentence pronounced by a court of law after a finding of guilt. (Tesón 2012: 405)

But policing has its limits, especially in the context of fighting international terrorist groups. For Jeff McMahan, although terrorists have some elements of both criminals and combatants, they ‘lack some of the defining characteristics of combatants and are considerably more dangerous than ordinary criminals’ (McMahan 2012: 155). They do not wear uniforms and are not fighting a conventional conflict, but pose a significant threat to international peace and security by plotting and carrying out terrorist attacks. Moreover, they often reside within the borders of other states, or in the in-between spaces with ineffective or uncooperative law enforcement, making them difficult to apprehend. While not wanting to legitimise the violence permitted in warfare, Walzer’s reflections suggest that the level of restraint described by Tesón is not feasible across the globe when dealing with the terrorist threat; some level of cross-border force – albeit not at the level of war – is warranted. Although Walzer explores some of the thorny moral questions regarding the rights of terrorists and civilians, imminence and accountability, he does not articulate what the standards should be or develop a theory of jus ad vim. However, his key conclusion – that such uses of limited force have ‘a different feel’ from war because they happen ‘outside the moral and legal conventions of ordinary warfare’ – pointed to a significant moral lacuna (Walzer 2007: 482).

Early Critiques While Walzer’s writings suggested the moral space a theory of jus ad vim could occupy, some scholars remained sceptical and openly critical. I want to point to two critiques that were influential in my own thinking about jus ad vim. First, David Luban, writing well before Walzer in beginning of the global War on Terror, criticised what he sees as the major flaw in bridging the difference between the law enforcement and war paradigms,

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namely that it may privilege belligerency privileges and thus be prone to significant abuse. Challenging the Bush administration’s decision to use lethal force outside territorially defined battlefields, Luban underscored that: by selectively combining elements of the war model and elements of the law model, Washington is able to maximise its own ability to mobilise lethal force against terrorists while eliminating most traditional rights of a military adversary, as well as the rights of innocent bystanders caught in the crossfire. (Luban 2002: 10)

What the Bush administration essentially did was reinterpret international law such that the laws of war applied to all spaces where terrorists operated. For Luban, broadening the moral use of lethal force in such a way ‘depresses human rights from their peacetime standard to the war-time standard’ (Luban 2002: 14). Thus, even limited force, like drones strikes, came to be governed by the jus ad bellum and jus in bello criteria, even if they were outside the traditional battlefield. Indeed, the drone controversy – specifically the fear that the US was obfuscating the meaning of last resort, necessity, just cause and proportionality when contemplating limited strikes by drones – was where my initial interest in jus ad vim was born. Second, one worries that accepting a moral space in-between law enforcement and the just war paradigm may lead to an overly permissive theory of force that can easily be abused. C. A. J. Coady identifies, in Morality and Political Violence, the core logic of Walzer’s distinction between jus ad bellum and jus ad vim, namely, that ‘there should be greater reluctance to engage in wholesale invasion than, for example, to send in a small armed unit to effect a minimal objective’ (Coady 2008: 93). However, Coady thinks that a theory of jus ad vim would lower the threshold for last resort for using lethal force too much. By distinguishing morally between force short of war and war, he thinks states would be provided a greater array of legal and moral options to counter threats that would make non-violent options seem less attractive and increase the frequency of political violence. Coady thus concludes that ‘we do not need some more permissive theory quite distinct from just war thinking’, because it would erode the restraints of just war thinking, only serving to promote unnecessary and unjust uses of 292

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force (Coady 2008: 93). This would, he predicts, reinforce power distinctions in the international realm, thus sowing the seeds for increased asymmetrical conflict as strong states engage in more frequent ‘correcting’ operations that fall short of war but exceed what would be permitted in by the law enforcement paradigm (Coady 2008: 6–7).

Defining Jus ad vim Both Luban’s and Coady’s critiques remind us that a theory of jus ad vim cannot diminish the ethical burden of a state seeking to use limited force. While their strident critiques imply that actions that do not qualify as war – perhaps drone strikes – should be judged as policing acts (which would hence disqualify them because the policing paradigm is much more restrictive), this assumption is seen as problematic to some scholars. S. Brandt Ford explores Coady’s critique in significant detail in his chapter ‘Jus ad vim and the Just Use of Lethal Force-Short-of-War’ published in the Routledge Handbook of Ethics and War. He argues that ‘just because a conflict fails to meet the criteria of warfare does not mean it automatically fits the policing paradigm’ (Ford 2013: 70). Ford observes that the policing paradigm is not capable of dealing with many of the contemporary conflicts, while ‘the conventional just war approach suffers from a false dichotomy where the use of lethal force by the military is judged through the lens of either no conflict whatsoever or all out war’ (Ford 2013: 71). Note that Ford, like Walzer, suggests that existing frameworks have limits that point to the need to theorise about the moral use of limited force. He concludes that, notwithstanding Coady’s concerns, a theory of jus ad vim acknowledges the ‘need for a hybrid moral framework’ to govern uses of force short of war, which have become commonplace in the post 9/11 era (Ford 2013: 72). At roughly the same time, I made the case (with my co-author Megan Braun) for jus ad vim in the seminal article ‘From Jus ad bellum to Jus ad vim: Recalibrating Our Understanding of the Moral Use of Force’, published in Ethics & International Affairs and reprinted here (Chapter 5). The thrust of our argument was that ‘the jus ad bellum framework does not offer sufficient leverage for assessing the jus ad vim actions’ (Brunstetter and Braun 293

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2013: 88). This was the first systematic attempt to establish the principles of jus ad vim. Our conclusions followed from two observations. First, we observed that the rise of non-state actors, coupled with advances in technology, accelerated the uses of force that do not fit neatly within the traditional category of war. This situation has arisen, in part, because of the emergence of what Eric Heinze calls the ‘regime of non-state responsibility’ – a view of sovereignty and international law where weak states are not responsible for what goes on within their uncontrolled borders. The result, Heinze argues, has been ‘the expansion of the right of self-defence under international law’, in a ‘limited and targeted fashion’, against non-state actors within another state (Heinze 2011: 1080). Second, we identified a disconnect between the scholarly literature and actual uses of force by states. The number of books and articles that employ traditionalist just war principles to describe every use of force, from drone strikes to the US-led Iraq invasion, abound. By pointing out that there was a tendency to not distinguish between the levels of force being applied, we claimed to have identified a major shortcoming of the ethical scholarship on military affairs, which reinforced the need to think more deeply about the ethics of limited force and the specific moral dilemmas such uses of force raise. A prominent example of such a disconnect is the US use of drones in targeted killing campaigns beyond official combat zones. As mentioned above, the use and abuse of drones was the catalyst that led me to think about the need for an ethics of limited force. In a previous article ‘The Implications of Drones on the Just war Tradition’, published in Ethics & International Affairs, I noted (along with my co-author Megan Braun) that the recent scholarship on the ethics of drones by military personnel, robotics experts and philosophers has tended to assume that semiautonomous drones are just like any other guided missile weapons platform and therefore do not change the categories of jus ad bellum or jus in bello. The same could be said for policy officials, who obfuscate the deliberation process by using a moral framework that does not differentiate between limited force and war, but rather assumes all uses of force imply the same moral challenges. We rejected this assumption and went on to explore

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how drones alter the meaning of traditional just war principles. Our conclusions – that drones lower the threshold of last resort for using force because too much faith is put into their purported accuracy and too little is understood about the long-term effects of a sustained drone campaign – led us to conclude that ethicists, statesmen and military planners need to update their ‘moral thinking in ways that take into account the technological advantages (and disadvantages) of drones’ (Brunstetter and Braun 2011: 355). This is what led us to write our 2013 article ‘From Jus ad bellum to Jus ad vim’. I think it is important to note that this article was published in a special centennial edition of Ethics & International Affairs on just war. As the journal editors noted regarding the special issue: As we approach our second century, the Carnegie Council will remain the home for energetic, rigorous, and creative thinking on the ethics of war. In these pages, we rededicate ourselves to the proposition that the ‘just war’ tradition is an inheritance that requires and rewards constant engagement. (Ethics & International Affairs 2013)

It is in this spirit that we pursued the development of a moral framework of limited force, or jus ad vim. Indeed, in the spirit of creative and critical thinking on the ethics of war, I have used the jus ad vim framework to critically reflect on US drone policy (Brunstetter 2013b; Emery and Brunstetter 2016), to think about the French domestic response to the Islamic State in Syria (ISIS) threat (Brunstetter 2018a) and limits of victory in modern conflict (Brunstetter 2018b).

Do we really need a new theory? In defence of jus ad vim Every attempt to innovate and reinterpret the ethics of war has been met with resistance and criticism. Indeed, the tradition ‘showcases a myriad of different theories and notable disagreements across various eras. These are the very substance of the tradition, its marrow’ (Brunstetter and O’Driscoll 2017: 2). It is no different with

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the emergence of jus ad vim, which began as a critique of traditionalist just war thinking and a response to new international conditions and has now become the subject of critique. I will refrain from rehashing the initial principles of jus ad vim and assume the reader has read the article ‘From Jus ad bellum to Jus ad vim’ (see Chapter 5 in this volume). Rather, I will delineate three extant critiques of jus ad vim and advance responses that attempt to defend the theoretical and practical importance of thinking about the ethics of limited force.

Are Existing Theories Good Enough? One of the main reasons I saw the need to think about jus ad vim was because, from my view, existing frameworks were not equipped to satisfactorily work through the dilemmas related to the use of limited force. This perception has come under criticism from multiple angles, but the thrust of the criticism is the same: we do not need a new paradigm because existing frameworks of just war provide the necessary moral power to make ethical judgments about limited force. In this volume, Kaplan (Chapter 11) argues that I fail to clearly demonstrate the inadequacy of either the jus ad bellum principles or the law enforcement paradigm for assessing limited force. Elsewhere, Avery Plaw and Carlos R. Colon argue in the case of drones that we do not need an ethics of limited force to evaluate their use. They argue not only that jus ad vim is ‘unrealistic and unhelpful’ as a framework, but that a ‘rigorous application of conventional [just war theory] criteria will provide a more appropriate, flexible, and realistic framework’ (Plaw and Colon 2015: 163). A parallel critique comes from the revisionist vein of just war thinking. Helen Frowe argued in a spirited exchange published in Ethics & International Affairs that a framework of limited force was essentially redundant: ‘[J]us ad vim, much like traditional collectivist approaches to war, places unwarranted weight on whether something counts as war’ (Frowe 2016; Brunstetter 2016). From her perspective, regardless of whether one is in a state of war, a state of peace or in the in-between zone of limited force, the ethics are the same. She subscribes to the reductive individualist version of just war, a view that challenges the traditionalist legalist view, but which is itself subject to considerable scholarly rebuttal. 296

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I find it interesting that this critique comes from both the traditionalist and revisionist strands of just war, though for different reasons. Traditionalists reject the call for something else, but surely must recognise the flaws of conventional just war thinking as well as the challenges of rigorous application of its principles. Indeed, the meaning of these principles is, as the literature shows, often the subject of spirited debate. While one could, as Enemark does, reject both jus ad vim and the traditionalist just war account, his conclusion that using drones in struggle against terrorist groups is a matter of perpetual risk management is deeply unsatisfactory (Enemark 2014). And revisionists, of course, reject not only jus ad vim, but the traditionalist view of just war as well. From my perspective, the important point to retain is that the ethics of war is a field of contestation, debate and disagreement. The turn to a theory of jus ad vim follows from the view that, rather than a stagnant just war theory, it is important to realise that the moral vocabulary of just war is shifting as security conditions, technological capabilities and ethical norms evolve. As Ian Clark describes the state of the field: It is not possible to speak of a single doctrine of just war; nor can we point to the linear development of any single idea. At best, just war appears as a tradition, a set of themes and tropes that has developed across the centuries and drawing from diverse strands of intellectual endeavour. These recurrent themes in the discussion of warfare reflect a general philosophical orientation (and hence can be loosely referred to as a continuing tradition), but they have been subject to constant revision and adaptation. (Clark 2015: 33; emphasis added)

My attempt to develop a framework for the use of limited force emerges from my engagement with the just war tradition and what I understand the purpose of engaging in ethical questions related to the use of force to be. First of all, I view the just war tradition as helping to elucidate the right set of questions to ask and providing guiding principles to explore potential answers (Brown 2007). My own reading of the tradition is inspired by those who view it as a conversation about the ethics of war that has occurred over the past two millennia, as a space for debate about the dilemmas 297

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and challenges of using force that one’s own society faces and as a means to develop new ideas to confront contemporary challenges (Brunstetter and O’Driscoll 2017). But this may at times require reimagining the ideas and categories we have inherited. As Chris Brown observes: if we believe that it is desirable to reduce the role of violence in human affairs this should simply stimulate us to rework the relevant categories to try to produce a more viable account of the circumstances under which the resort to force might be justified. (Brown 2007: 67)

This is what I hope thinking about jus ad vim can accomplish. I recognise that I am not reinventing the wheel as it were, coming up with a new framework out of the air. Rather, the ideas I develop have underexplored historical precedents in the just war tradition – the notion of limited force as punishment for example – and are inevitably connected to existing jus ad bellum and jus in bello principles. Thus, my contribution aims to show how existing principles might need to be reinterpreted or recalibrated in a limited force context and to identify new principles that could be useful. Jus ad vim fits into how Cian O’Driscoll describes the just war tradition as necessarily ‘subject to the processes of negotiation and re-negotiation as its advocates seek to re-interpret and apply it to new scenarios and historical contexts’ (O’Driscoll 2007: 113). The development of a theory of limited force is an exercise of this sort – part of a spirited conversation aimed at navigating the ethical challenges we face today. It is meant not to trounce just war thinking or the law enforcement paradigm; indeed both remain highly relevant in many contexts. But rather, it is part of the process of an inevitable renegotiation of its terms. If ‘just war is a site of contestation constituted by a protean idiom or moral vocabulary that both structures and informs how we think about war in substantive terms’, then the act of contestation may indeed change the meaning of these terms, or reveal new ones (O’Driscoll 2011: 84). While one of the goals of theorising about jus ad vim is to identify the shortcomings of existing paradigms, the essence of jus ad vim is more constructive. By focusing on the dilemmas of using limited force, the scholar is led to think about the principles that govern the use of limited force (jus ad vim), what 298

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one can do when using limited force (jus in vi) and justice after the use of limited force (jus post vim). This has, controversially, led me to reinterpret some of the jus ad bellum principles – notably just cause – and define a new principle: the probability of escalation.

Is Jus ad vim Too Permissive and Subject to Abuse? One of the early critiques of jus ad vim, articulated by Coady, was it was too permissive and would enable leaders of strong states to use limited force for dubious purposes. The reality is that this happens with or without a theory of jus ad vim. Indeed, just war principles are subject to the same criticism, no matter how rigorously they are applied. Although others will no doubt disagree, this is what the Obama administration has done by misappropriating jus in bello principles to defend drone strikes (Brunstetter and Bacardi 2015). If we stick with the same categories and fail to recognise that limited force is different from war, then we are simply engaged in a battle of whose interpretation of jus in bello is correct. The attempt to articulate jus ad vim aims to provide a more precise language to think about limited force and, in doing so, seeks to constrain potential abuses of limited force. There is, of course, a challenge in doing so given that the jus ad vim notion of just cause is necessarily more permissive than that of jus ad bellum. Kaplan, in his chapter, warns of conflating defensive force with punitive and preventive force in ways that undermine the existence of a just cause, of mischaracterised international crimes as acts of military aggression warranting limited force and of further blurring the edges between war and peace to the point that we can have little clarity. Parkin, who argues the case of contingent pacifism, worries that jus ad vim will make the forcible options look more attractive than non-violent options by providing a moral blanket of responsibility to legitimise state responses to perceived threats. These are valid concerns – one should always worry about turning too easily to lethal force. That said, we have seen multiple instances in the recent past when states have used, or threatened to use, limited force as a punitive response. Both the Obama and Trump administrations’ reactions to the Syrian regime’s use of chemical weapons are prime examples, but so are Israel’s punitive strikes against 299

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the Syria regime, the Jordanian government’s retaliation against ISIS burning alive its pilot (Cockroft 2015) and Egypt’s punitive attacks against ISIS in Libya (Al Jazeera 2017). And the list goes on. We have also seen the spectre of preventive force resurge as debate about whether a preventive strike would be legitimate to prevent Iran or North Korea from obtaining transcontinental nuclear weapons capability. And finally, there is the threat from terrorist groups and the use of drones to kill suspected terrorists who pose, what I call elsewhere, a threat of lagged imminence (Emery and Brunstetter 2016: 260). All this is to say that jus ad vim does allow for punitive and preventive force, though it does not give a blank cheque to use limited force in any of these ways. More untangling of how its principles would be interpreted in these cases is clearly warranted, but beyond the scope of this chapter. I am cognizant of the risk that providing moral justification for limited force could diminish the meaning of last resort. The temptation to say we waive just cause, so we can respond to injury, or the threat of it, is real. But to do so would miss the bigger point, namely that thinking about the other jus ad vim principles – especially the probability of escalation – should temper any impulsive temptations. In this light, just cause in jus ad vim is similar to just cause in jus ad bellum – simply having just cause does not legitimise the use of force. Rather, only after thinking through the other principles can one decide whether it is moral to act. This is why the new probability of escalation principle is so important.

Why We Need to Focus on Escalation One of the most important contributions of my initial attempt to conceive jus ad vim was the new principle I called the probability of escalation. I argued that because the essential element of any jus ad vim act ‘is that it does not lead to the outbreak of war . . . if engaging in jus ad vim actions has a high probability of resulting in war, then one could argue that such actions are not justifiable’ (Brunstetter and Braun 2013: 99). While my critics agree that the subject of escalation is important, they reject the need for a new principle. Kaplan argues that escalation is simply contained within the jus ad bellum principle of proportionality. Lango, in Chapter 8, rejects the need for a new principle, but concedes that 300

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a theory of just and unjust uses of force should include a theory of just and unjust escalations. Gillcrist and Lloyd (Chapter 12) warn that limited force is inherently prone to mission-drift, but worry that a new principles will ultimately be ineffective. Rather, the use of limited force is unlikely to produce just cause benefits outweighing the total costs of waging persistent, drawnout conflicts. What is clear from these critiques is that thinking about escalation is important. I disagree with the claim that the probability of escalation is simply part of the proportionality calculus, or that it is impossible to prevent mission creep. Indeed, this is where thinking about jus post vim – what I call elsewhere the principles of truncated moral victory – can be helpful (Brunstetter 2018b). But to speak directly to the point of escalation, the whole purpose of this principle is to focus explicitly on the risk of escalation, as opposed to having it be part of some broader principle – proportionality – that is difficult to calculate. Jus ad bellum proportionality is difficult to measure, with the prospect of future good difficult to identify and costs hard to predict. Indeed, the Bush administration sold the Iraq War on the belief that democracy building would outweigh the costs of the war – a false assumption, but one that shows the challenge of calculating proportionality (Brunstetter 2014: 89). Add to this the elusive nature of victory, namely that some wars are either unwinnable, last a generation, or, as in the War on Terror, are seemingly perpetual, and one sees even deeper challenges with the proportionality (and probability of success) criteria (Hom et al. 2018). However, by focusing on the probability of escalation, one narrows the scope of the inquiry to a specific question: is limited force to deal with a specific threat possible without leading to full-scale war? I recognise that this may not be an easy question to answer, but it is one that should be asked. Of course, there are thorny issues to be explored: in relation to punitive strikes to send a message to a state violating international norms, in relation to preventive force to stop the spread of nuclear weapons, in the context of preventing genocide, or to thwart terrorist activities. Moreover, as Kaplan remarks, there are different kinds of escalation to think about: initiator escalation, on-the-ground escalation and regional escalation come to mind. But by focusing on the probability of escalation, a better understanding of the 301

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moral dilemmas and choices associated with specific scenarios can be explored. Thinking about escalation reveals the clear moral tensions inherent in using limited force. Limited force is not always an isolated act of violence, but rather is often a response to ongoing violence or undertaken to avoid what is perceived to be inevitable and unjustifiable aggression. The probability of escalation criterion should not be considered as providing a formula to follow – indeed, I have not provided a formula. Rather, it is a principle that leads us to ask a series of questions that bring to the fore the potential for the abuse of limited force: Could limited force be the first step in a protracted conflict? Could it engulf a region in war by bringing other states into fray? Would it lead to a – potentially acceptable – level of retaliation? These are important questions that get us thinking about whether limited force is justifiable, or whether its use will lead to a worsening of international affairs. A robust understanding of the probability of escalation, including a deep understanding of the different types of escalation enriches the moral vocabulary we use to talk about the use of force today. Ultimately, thinking about escalation requires being able to predict outcomes of limited force. While perhaps impossible – there will no doubt be a lot of grey area and contexts in which it is unclear if escalation will occur – unpacking what escalation means can identify some of the potential pitfalls. This leads us back to the claim I made about jus ad vim and constraint, and speaks to the worries regarding an overly permissive view of just cause: ultimately, theorising about jus ad vim and the probability of escalation in particular is aimed at curtailing potential abuses of limited force. Its principles can therefore serve, and should serve, as both a framework of analysis and a language of critique.

Conclusion: Jus ad vim as a language of critique James Turner Johnson described the just war tradition as supplying ‘a fund of practical moral wisdom, based not in abstract speculation or theorization, but in reflection on actual problems encountered in war as these have presented themselves in different historical circumstances’ (Johnson 1984: 15). Jus ad vim has been developed as a project of inquiry in this spirit. The jus ad vim 302

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project emerged from an international context in which statesmen employ limited force on a more recurrent basis, but arguably lack the moral precision to evaluate such decisions. Recent changes in the conception of sovereignty, the rise of non-state actors, the threat of weapons of mass destruction and the advent of drones suggest the need further develop such a theory, despite the hesitancy of some scholars. I view the language of jus ad vim, like that of just war, as a language of engagement that should serve a practical purpose. The primary goal of developing a framework for the use of limited force, as I see it, lies partly in the process itself – namely the act of theorising about jus ad vim, jus in vi and jus post vim. This can help us think about how limited force ought to be used and also to identify how it is problematically being used under the auspices of just war principles. A secondary goal is to provide practical moral language that can inform statesmen who will wield the power to use such force, but also those who seek to criticise perceived abuses. Walzer first thought of jus ad vim as a critical alternative to the Iraq invasion. I have used the framework to criticise US drone practices (Braun and Brunstetter 2013) and to analyse Obama’s threat to strike Syria in 2013 (Emery and Brunstetter 2015). One could image countless other scenarios when one could use it as a critical tool (Zenko 2017). While one may wish to remain wedded to the law enforcement– raditionalist just war dichotomy and to reject any uses of force that fall in-between, to do so marks a disconnect between theory and practice that will lead to the kinds of abuses that both Luban and Coady warn against. Moreover, subscribing to the view that the ethics of using force is the same in every context misses something important about the realities of using lethal force in today’s world. In the spirit of the just war tradition as I understand it, exposing the flaws of existing interpretations and proposing an alternative framework is a hallmark of the continuing – and perennial necessity of re-engaging with – timeless questions about the use of force and the specific dilemmas that might arise in any given time. If we think of limited force as conceptually distinct from other types of violence, then, paralleling the categorical divides in just war thinking, we need to theorise about jus ad vim, jus in vi and jus post vim. By providing a reimagined and recalibrated moral vocabulary, a framework of limited force can potentially 303

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help statesmen evaluate limited force scenarios more morally, or at the very least, provide scholars and practitioners the appropriate language to criticise abuses.

References Al Jazeera (2017), ‘Egypt Launches Strikes in Libya after Minya Attack’, Al Jazeera, 27 May, (last accessed 3 August 2018). Bellamy, Alex J. (2006), Just War: From Cicero to Iraq, Cambridge: Polity. Braun, Megan and Daniel R. Brunstetter (2013), ‘Rethinking the Criterion for Assessing CIA-Targeted Killings: Drones, Proportionality and Jus ad vim’, Journal of Military Ethics, 12: 4, 304–24. Brooks, Rosa (2014), ‘Drones and the International Rule of Law’, Ethics & International Affairs, 28: 1, 83–103. Brown, Chris (2007), ‘From Humanised War to Humanitarian Intervention: Carl Schmitt’s Critique of the “Just War Tradition”’, in Louiza Odysseos and Fabio Petito (eds), The International Political Thought of Carl Schmitt: Terror, Liberal War and the Crisis of Global Order, London: Routledge, pp. 56–70. Brunstetter, Daniel R. (2013), ‘Syria and the Just Use of Force Short of War’, Ethics & International Affairs, 24 September, (last accessed 3 August 2018). Brunstetter, Daniel R. (2014), ‘Trends in Just War Thinking during the US Presidential Debates 2000–12: Genocide Prevention and the Renewed Salience of Last Resort’, Review of International Studies, 4: 1, 77–99. Brunstetter, Daniel R. (2016), ‘Jus ad vim: A Rejoinder to Helen Frowe’, Ethics & International Affairs, 30: 1, 131–6. Brunstetter, Daniel R. (2018a), ‘The Purview of State-Sponsored Violence: Law Enforcement, Just War, and the Ethics of Limited Force’, in The Ethics of War Revisited: Moral Challenges in an Era of Contested and Fragmented Sovereignty, Daniel Brunstetter and Jean-Vincente Holeindre (eds), Washington, DC: Georgetown University Press, pp. 221–40. Brunstetter, Daniel R. (2018b), ‘Justice after the Use of Limited Force: Victory and the Moral Dilemmas of Jus post vim’, in Andrew R. Hom, Cian O’Driscoll and Kurt Mills (eds), Moral Victories: The Ethics of Winning Wars, Oxford: Oxford University Press, pp. 214–30.

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In Defence of Jus ad vim Brunstetter, Daniel R. and Megan Braun (2011), ‘The Implications of Drones on the Just War Tradition’, Ethics & International Affairs, 25: 3, 337–58. Brunstetter, Daniel R. and Megan Braun (2013), ‘From Jus ad bellum to Jus ad vim: Recalibrating Our Understanding of the Moral Use of Force’, Ethics & International Affairs, 26: 1, 87–106. Brunstetter, Daniel R. and Arturo Jiménez Bacardi (2015), ‘Clashing over Drones: The Legal and Normative Gap between the US and the Human Rights Community’, International Journal of Human Rights, 19: 2, 176–98. Brunstetter, Daniel R. and Cian O’Driscoll (2017), ‘Introduction’, in Daniel Brunstetter and Cian O’Driscoll (eds), Just War Thinkers: From Cicero to the 21st Century, New York: Routledge, pp. 1–7. Clark, Ian (2015), Waging War: A Philosophical Introduction, Oxford: Oxford University Press, 2nd edn. Coady, C. A. J. (2008), Morality and Political Violence, Cambridge: Cambridge University Press. Cockroft, Steph (2015), ‘Jordan Launches 56 Revenge Airstrikes against ISIS after Terror Group Released Video Showing Jordanian Pilot Being Burned Alive’, Daily Mail, 9 February, (last accessed 3 August 2018). Doyle, Michael W. (2008), Striking First: Preemption and Prevention in International Conflict, Princeton: Princeton University Press. Emery, John R. and Daniel R. Brunstetter (2015) ‘Drones as Aerial Occupation’, Peace Review, 27: 4, 424–31. Emery, John and Daniel R. Brunstetter (2016), ‘Restricting the Preventive Use of Force: Drones, the Struggle against Non-State Actors, and Jus ad vim’, in Kirsten Fisk and Jennifer Ramos (eds), Preventive Force: Drones, Targeted Killing and the Transformation of Contemporary Warfare, New York: New York University Press, pp. 257–82. Enemark, Christian (2014), ‘Drones, Risk, and Perpetual Force’, Ethics & International Affairs, 28: 3, 365–81. Ethics & International Affairs (2013), ‘Editor’s Note’, Ethics & International Affairs, 14 February, (last accessed 3 August 2018). Ford, S. Brandt (2013), ‘Jus ad vim and the Just Use of Lethal Force-Shortof-War’, in Fritz Allhoff, Nicholas G. Evans and Adam Henschke (eds), Routledge Handbook of Ethics and War: Just War Theory in the 21st Century, London: Routledge, pp. 63–75. Frowe, Helen (2016), ‘On the Redundancy of Jus ad vim: A Response to Daniel Brunstetter and Megan Braun’, Ethics & International Affairs, 30: 1, 117–29.

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Force Short of War in Modern Conflict Heinze, Eric A. (2011), ‘The Evolution of International Law in Light of the “Global War on Terror”’, Review of International Studies, 37: 3, 1069–94. Hom, Andrew R., Cian O’Driscoll and Kurt Mills (eds) (2018), Moral Victories: The Ethics of Winning Wars, Oxford: Oxford University Press. Howes, Dustin Ells (2010), Towards a Credible Pacifism: Violence and the Possibilities of Politics, New York: State University of New York Press. Johnson, James Turner (1984), Can Modern War Be Just?, New Haven: Yale University Press. Kaldor, Mary (2012), New and Old Wars: Organized Violence in a Global Era, Stanford: Stanford University Press. Luban, David (2002), ‘The War on Terror and the End of Human Rights’, Philosophy and Public Policy Quarterly, 22: 3, 9–14. McMahan, Jeff (2009), Killing in War, Oxford: Oxford University Press. McMahan, Jeff (2012) ‘Targeted Killing: Murder, Combat or Law Enforcement?’ in Claire Finkelstein, Jens David Ohlin and Andrew Altmen (eds), Targeted Killings: Law and Morality in an Asymmetrical World, Oxford: Oxford University Press, pp. 135–56. Miller, Seumas (2016), Shooting to Kill: The Ethics of Police and Military Force, Oxford: Oxford University Press. O’Driscoll, Cian (2007), ‘Learning the Language of Just War Theory: The Value of Engagement’, Journal of Military Ethics, 6: 2, 107–16. O’Driscoll, Cian (2011), ‘Talking About Just War: Obama in Oslo, Bush at War’, Politics, 31: 2, 82–90. Plaw, Avery and Carlos R. Colon (2015), ‘Correcting the Record: Civilians, Proportionality, and the Jus ad vim’, in Steven J. Barela (ed.), Legitimacy and Drones: Investigating the Legality, Morality, and Efficacy of UCAVs, Surrey: Ashgate, pp. 163–89. Ramsey, Paul (1968), The Just War: Force and Political Responsibility, Lanham: Rowman and Littlefield Publishers, Inc. Rengger, Nicholas (2013), Just War and International Order: The Uncivil Condition in World Politics, Cambridge: Cambridge University Press. Tesón, Fernando R. (2012), ‘Targeted Killing in War and Peace: A Philosophical Analysis’, in Claire Finkelstein, Jens David Ohlin and Andrew Altman (eds), Targeted Killings: Law and Morality in an Asymmetrical World, Oxford: Oxford University Press, pp. 403–33. Totten, Mark (2010), First Strike: America, Terrorism, and Moral Tradition, Yale: Yale University Press. Walzer, Michael [1977] (2006), Just and Unjust Wars: A Moral Argument with Historical Illustrations, New York: Basic Books, 4th edn.

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In Defence of Jus ad vim Walzer, Michael (2002), ‘The Triumph of Just War Theory (and the Dangers of Success)’, Social Research, 69: 4, 925–44. Walzer, Michael (2007), ‘On Fighting Terrorism Justly’, International Relations, 21: 4, 480–4. Zenko, Micah (2010), Between Threats and War: US Discrete Military Operations in the Post-Cold War World, Stanford: Stanford University Press. Zenko, Micah (2017), ‘When Do Limited Strikes Work?’, The Atlantic, April 8; (last accessed 3 August 2018).

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Index

Page numbers followed by n represent notes Achilles in Vietnam, 254 ‘actual warfare’, 6, 79 Afghanistan counterinsurgency, 138 counter-terrorism, 128 drones, 142 just war theory, 252–4, 288 non-combatants, 85 terrorism, 82, 162 African National Congress, 138–9 African Union, 66 Allan, Alfred, 120–1 Allan, Marietjie M., 120–1 Allen, Susan Hannah, 107 al-Qaeda Bush Doctrine, 82–83 casuistry, 187 drones, 142 international terrorist groups, 132 nation-building, 252–3 non-state actors, 81 targeted killing, 88, 182–3 US airstrikes, 290 Yemen, 93 Altman, Andrew, 274 ‘amicable measures short of war’, 45 Anderson, Kenneth, 84, 87, 88

Andreas, Peter, 108 Anfal Campaign, 64 Ang, Adrian U-Jin, 109 apartheid, 106 Aquinas, Thomas, 39–40, 178, 185–9 Arab Spring, 67 Aristotle, 187 ‘armchair generals’, 15 armed humanitarian intervention (AHI), 57–8, 71, 71–2, 163–4 Art, Robert, 42 assassination of leaders, 47, 68, 274–5 asymmetry in modern combat, 7, 13–35, 293 Augustine, 39–40, 182, 187 Authorization for the Use of Military Force, 82 Baghdad, 250 Balkans, 66, 81, 220 Battle of Agincourt, 14 Battle Studies, 257n Bellamy, Alex, 59, 96, 97 bin Laden, Osama, 141–2, 252, 275 Blum, Gabriella, 235n Boko Haram, 58

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Index Bosnia and Herzegovina, 86 Boutros Galhi, 108 Braun, Megan jus ad vim, 8–9, 293–5 probability of escalation principle, 153, 175 redundancy of jus ad vim, 197–212 ‘in-between’ spaces, 38 terminology, 149 terrorism, 104–5 Brennan, John, 87 Brooks, Rosa, 286 Brown, Chris, 298 Brown, Davis, 96 Brunstetter, Daniel and Frowe, 176–7, 185–6 jus ad vim, 8–9, 170, 172, 293–5 probability of escalation principle, 153, 175 redundancy of jus ad vim, 197–212 ‘in-between’ spaces, 38 terminology, 149 terrorism, 104–5, 187, 189 Buchanan, Allen, 216–17, 233, 235n Bull, Beate, 108 Bureau of Investigative Journalism, 269–70 Bush, George, 3 Bush, George W., 3, 82–3, 85, 187, 252–3, 289, 292, 301 Memorandum of Notification, 82 Bush Doctrine, 82–3, 289 Canada, 58 The Caroline Case, 233 Carter, Jimmy, 3 casuistry, 173, 174, 180–6, 189 ceteris paribus, 66, 240

‘The Challenge of Cultural Relativism’, 239 Chenoweth, Erica, 67 children, 108 Childress, James, 51 Christianity, 173, 182, 185–7, 186 Churchill, Winston, 3, 15, 33n CIA, 27, 82, 198, 204, 210 civilian casualties, 84, 87, 269–73, 275–6 Clark, Ian, 285, 297 Clausewitz, Carl von, 42–4 Coady, C. A. J., 81, 87, 89–90, 292–3, 293, 299, 303 Coates, A. J., 174, 184 coercive acts, 36–56, 258n Cold War, 154 Cole, Wade M., 109 collectivism, 130 Colon, Carlos R., 296 conditional pacifism, 264–8, 274–5 constructivism, 117, 123n contingent pacifism, 264–8, 270, 280n, 299 Correlates of War data set, 43–4 ‘cosmopolitan law enforcement’, 285 Council on Foreign Relations, 86 counterinsurgency, LEM and MCM in, 138–41 counter-terrorism, 128–9, 171–2, 215, 227–8 Cox, Darrell, 186–7 Croome, Andrew, 28–9 Cuban Missile Crisis, 42–3 cyber-tactics, 52n Dancy, Geoff, 120 ‘deep morality of war’, 23–4 demilitarisation, disarmament and reintegration (DDR), 65

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Force Short of War in Modern Conflict Democratic People’s Republic of Korea, 116 Derrida, Jacques, 117 DeSeversky, Major Alexander P., 258–9n Dimitrijević, Nenad, 120 discrimination principle, 20, 208–9 distance, 240–3 ‘doctrine of the moral equality of combatants’, 19 Drezner, Daniel W., 107 drones and civilians, 27–31, 275 Enemark, 297 and escalation, 93 and ethics, 294–5 implications for, 204–5, 210 and jus ad bellum, 81–5, 201 and jus ad vim, 303 and jus in bello, 299 Other, 96–7 Pakistan, 127, 198, 200, 223, 269–73 as policing, 293 proportionality, 204 targeted killing, 87–8, 142 terrorism, 300 vis perpetua, 48 War on Terror, 38 Drury, Cooper, 107 Du Picq, Ardant, 257n dualisms, 156–8, 160–1

Episcopal Church, 3 escalation, 154–6, 201–3, 230–2, 300–2 and just cause, 165–6 and just war theory, 148–69 ethics, 66–71, 103–26, 284–304 Ethics & International Affairs, 170, 189–90, 293–4, 294–5, 296 The Ethics of Armed Conflict, 148, 152–3, 167 European Union, 66 evoked potential, 17, 25–32

East Timorese, 121 Eastern Democratic Republic of Congo (DRC), 61 Egypt, 300 Egyptian forces, 14–15 Elshtain, Jean Bethke, 289, 290 Enemark, Christian, 47–8, 149, 235n, 236n, 297 ‘enemy’ civilians, 48–9

Gaddafi, Colonel, 57 Gartzke, Erik, 42 Geneva Convention, 206, 211n genocide, 63–4, 165 ‘genuinely reluctant resort [to force]’, 90 Germans, 257n Germany, 174–5, 250 Gillcrist, James, 301

The Face of Battle, 257n ‘fair fight’, 18 fairness, 17–25, 33n Federally Administered Tribal Areas (FATA), 127, 142 Fehrenbach, T. R., 248 firebreaks, 160–1, 162, 165, 166 Fixdal, Mona, 51 Ford, S. Brandt, 293 Fox News, 27–8 France, 289, 295 ‘From Jus ad bellum to Jus ad vim: Recalibrating Our Understanding of the Moral Use of Force’, 293–4, 295 Frowe, Helen, 48, 170, 176–7, 185–6, 190n, 296 ‘fungibility of force’, 42 Fussell, Paul, 250

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Index Global Centre for the Responsibility to Protect, 62 ‘global war on terror’, 85, 288, 291–2; see also War on Terror ‘good lie’, 255–6 Grenade, 202 Grossman, Dave, 239, 240, 253, 258n ‘guerrilla problem’, 27 guilt, 238–43 Gulf War, 3, 15, 159–60, 215, 234n, 259n Hafner-Burton, Emile, 109–10 Hague Convention, 206, 211n Harbour, Frances, 92 Hart, H. L. A., 151 Heinze, Eric, 81–2, 294 Hobbes, Thomas, 61 Holmes, Robert, 264 human rights, 83–5, 103–26 international treaties, 109–10 and just cause, 163–5 humanitarian intervention, 53n, 67–8 Hurka, Thomas, 68, 69–70, 91–2 Hussein, Saddam, 64, 250, 252, 290 Hutu Power genocidaires, 61 ‘The Implications of Drones on the Just war Tradition’, 294–5 ‘in-between’ spaces, 38, 82, 182–3, 218, 221, 290 Independent International Commission on Kosovo, 58 injuria, 90, 91, 225–9 innocents, 264–8, 268–75, 279n aggressors, 266 bystanders, 265 insecurity short of war, 93 institutional pacifism, 279n

International Commission on Intervention and State Sovereignty (ICISS), 58–9 report, 61, 62, 65, 68, 69, 70, 72 International Criminal Court (ICC), 59 International Crisis Group, 153 international law, 173–4 International Law Association, Use of Force Committee, 152–3 International Law Association report, 86, 87 Iran, 83, 153, 300 Iraq al-Qaeda, 82 civilian casualties, 84 counterinsurgency, 138–9 counter-terrorism, 128 Gulf War, 15, 215, 234n, 250–1 and human rights, 87 ISIS, 64, 143 limited force, 290 no-fly zones, 86 nuclear reactor, 46–7 Walzer, 170 Iraq War 2003, 252–4 jus ad bellum, 83 no-fly zones, 159–60 proportionality, 301 United States, 3, 250 Walzer, 38, 289, 303 ISIS counterinsurgency, 139 international terrorist groups, 132, 143 jus ad vim, 295 limited force, 300 targeted killing, 58 United States, 64, 159–60 US airstrikes, 167

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Force Short of War in Modern Conflict Islamic tradition, 53n Israel, 299–300 Israelis, 46–7 Jafarey, Saqib, 108 Japan, 249–50 Johnson, James Turner, 178, 179–80, 184, 289, 302 Johnson, Lyndon, 251, 253 Jonsen, Albert R., 180–2 Jordan, 300 journalists, 164–5 jus ad bellum (resort to war) (alleged) failings of, 200–9 definition, 2, 7–9 inadequacy of, 13–35, 85–8 insufficient, 220–3 principles, 158–60 small-scale force and the limitations of, 81–8 jus ad vim argument for, 198–200 and coercive acts, 36–56 defence of, 295–302 defensive force and, 219–32 definition, 7–10, 293–5 emergence of, 287–95 and just war theory, 170–195 as a language of critique, 302–4 measures short of war and foreign policy, 37–9 and morality, 50–2, 127–47, 284–307 preventive force and, 215–19 principles of, 89–97 and ‘rapprochement’ of Walzerians and revisionists, 171–2 redundancy of, 197–212 subject to abuse, 299–300 and violence, 36–56 and ‘war of ethics’, 176–7

‘Jus ad vim and the Just Use of Lethal Force-Short-of-War’, 293 jus in bello (justified conduct in war) definition, 2, 5, 7–9 inadequacy of, 13–35 Just and Unjust Wars: A Moral Argument with Historical Illustrations, 2 historical just war, 180–1 Iraq War 2003, 289 jus ad vim, 37–8 just war theory, 172–3, 175 ‘measures short of war’, 6, 79, 148 Vietnam War, 288 just cause, 89–91, 163–6 ‘just correlativity’, 164 ‘just resort to force’, 213 Just War against Terror, 290 The Just War: Force and Political Responsibility, 288 just war theory and armed force short of war, 148–69 crisis in, 288–91 definition, 2–4 and escalation, 148–69 historical, 177–80 and jus ad vim, 170–95 and political violence, 39–41 ‘revisionist’ account, 5–6, 37, 38, 49, 185–9 success of, 288 Walzer, Michael, 172–5 ‘justice as conflict’, 117 ‘justice as fairness’, 110, 117 Kahn, Paul, 22, 31 Kaldor, Mary, 285 Kant, Immanuel, 41, 45, 117, 123n

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Index Kaplan, Shawn, 296, 299, 300, 301 Kathman, Jacob D., 65–6 Keegan, John, 257n Kennan, George F., 45–6 Kenya, 139 Keohane, Robert O., 216–17, 233, 235n Killmister, Suzy, 27 Kitchener, General Horatio, 14–15 Kofi Annan, 58 Korean War, 154, 163 Kosovo War, 15, 58, 85, 288 Kurds, 64, 215, 234n Kuwait, 15, 250 Lahiri, Sajal, 108 Lango, John, 51, 148, 152–3, 300–1 LaPlante, Lisa, 121 last resort, 89–91, 146n, 160–3 law enforcement model (LEM), 8, 129, 130–1, 145–6 in counterinsurgency, 138–41 hybridisation with MCM, 138–45 insufficient, 220–3 use of force in, 134–8 Law of Peoples, 105, 110–12, 115, 118, 119, 123n ‘The Law of Peoples’, 8 Lazar, Seth, 69, 70, 280n ‘legalist paradigm’, 214–15, 220, 235n Lektzian, David, 107 Levinas, Emmanuel, 105, 116–21 Levy, Jack, 43 Libya, 57, 300 no-fly zones, 86, 93–4 limited war, 238–61 Lloyd, Nick, 301 lockkeepers, 190

Long War Journal, 280n Luban, David, 235n, 291–2, 293, 303 Macedonia, 63 Maguen, Shira, 240, 253–4 Marinov, Nikolai, 107 Marshall, S. L. A., 239–40, 257n mass atrocities, 63–5, 65–6 Mau struggle, 139 May, Larry, 267, 273 McChrystal, General Stanley, 258n McMahan, Jeff inequality of combatants, 13 jus ad bellum, 183, 205 just war theory, 18–21, 23–4 law enforcement paradigm, 219, 234n revisionists, 187 terrorism, 291 traditionalists, 179 McVeigh, Timothy, 143 ‘measures short of war’, 6, 79 Meister, Robert, 121 Men against Fire, 239–40 Midnight Empire, 28–9 militarised interstate disputes (MIDs), 44 military, morality of use of, 127–47 military combat model (MCM), 8, 129, 130–1, 145–6 in counterinsurgency, 138–41 hybridisation with LEM, 138–45 use of force in, 134–8 military means short of war (MMSoW), 213–36 Milosevic, Slobodan, 15 mission-drift, 238–61, 301 MOOTW (military operations other than war), 149 moral equality of combatants, 284–307

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Force Short of War in Modern Conflict ‘moral imperative’, 83 moral injury, 238–61 moral justification, 150–1 moral use of force, 79–102 morality, of use of military and police, 127–47 Morality and Political Violence, 292–3 ‘morally weighted harm’, 70–1 Mt Sinjar, 64 Murphy, Audie, 248, 257n Myanmar, 59 National Council of Catholic Bishops, 51 national security, 229 NATO, 15, 53n, 57, 66, 93–4, 153 New America Foundation, 84, 269–70, 273 ‘new wars’, 285 9/11, 82, 252 Nixon, Richard, 252 ‘no risk’ wars, 15–16 Nobel Peace Prize, 3–4 no-fly zones, 86–7, 93–4, 97, 127, 215, 290 ‘non-amicable measures short of war’, 45–6 ‘non-equality thesis’, 20–1 non-innocents, 265 North Korea, 154, 163, 300 Obama, Barack casuistry, 187 drones, 82–3, 85, 299 ISIS, 64 just war theory, 3–4 limited force, 299–300 Syria, 303 targeted killing, 88 terrorism, 80, 220 O’Driscoll, Cian, 177, 179, 186–7, 189–90, 298

Omdurman, 14–15 ‘On fighting terrorism justly,’ 290 On Killing, 240 Operation Desert Storm, 250 Operation Opera, 46–7 Orend, Brian, 85–6, 152 Other, 94–7, 98, 105 pacifism, 262–83 conditional, 264–8 contingent, 264–8, 270, 280n, 299 personal, 279n Pakistan assassination of leaders, 275 civilian casualties, 273, 276 counterinsurgency, 138 drones, 83–4, 93, 127, 198, 200, 223 ‘in-between’ spaces, 290 targeted killing, 269–71 technology, 84–5 terrorism, 82, 162 ‘paradox of riskless warfare’, 22 Paris terrorist attacks 2015, 129, 146n Parkin, Nicholas, 299 Pascal, Blaise, 184 Pattison, James, 93–4, 210n peace, definition, 41–4 Peksen, Dursun, 106–7, 109 Persian Gulf War, 250–1 personal pacifism, 279n Pinker, Steven, 62 Plato, 117 Plaw, Avery, 275, 296 police officers, 127–47, 290–1 political violence, 39–41 Posel, Deborah, 120 post-traumatic stress, 120–1 preventative detention, 143–5 preventive force, 61–6, 215–19

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Index ‘principle of unnecessary risk’, 17–18 probability of escalation principle, 91–4, 153–4, 175, 230–2 proportionality, 69–71, 91–4, 166–7, 230–2, 268–75, 301 Protocols Additional to the Geneva Conventions, 161 Provoke, 202 PTSD, 240, 252, 253–4, 254, 256n Qatar, 59 Rachels, James, 239, 256n ‘radical asymmetry’, 7 radical technological asymmetry, 14–32 Ramsey, Paul, 288 RAND Corporation, 155 Rawls, John constructivism, 123n Law of Peoples, 8, 110–12, 118 and Levinas, 119–20 process of justice, 113 revisionists, 175 societal ethics, 117 Society of Peoples, 103–4, 110, 114–16, 122–3 ‘realistic utopia’, 110 ‘regime of non-state responsibility’, 81–2, 294 regular soldiers, 131–3, 134–8, 238–43 ‘regular war’, 174, 178 Rengger, Nicholas, 173, 288–9 ‘resort principles’, 150–1 Responsibility to Protect Doctrine, 83, 221 responsibility to protect (R2P), 8, 57–77, 116–19 three pillars, 59–60, 63, 63–5 ‘restraint of war’, 289

revisionists and jus ad vim, 171–2 and just war theory, 185–9 as lockkeepers, 183–5 McMahan, Jeff, 179, 279–80n and pacifism, 264 Walzer, Michael, 175–6 ‘right to remedy’, 96 ‘risk free’ warfare, 15–16 Rodin, David, 31, 201, 210–11n, 235n Rohingya, 59 Rome Statute, 59 Roosevelt, President, 249 Routledge Handbook of Ethics and War, 293 rule of law, use of force to maintain, 67 rule utilitarianism, 146n rules of engagement (ROE), 140 Russia, 153 Rwanda, 81, 220 Rwandese Patriotic Front (RPF), 61 sanctions, 46, 106, 106–7, 122 smart, 108–9 Saudi Arabia, 15 Scharf, David, 120 Scheid, Don, 143–5 Schelling, Thomas, 42 Second World War, 174–5, 181, 239–40, 248, 249–50, 257n Serbia, 15 Shakespeare, William, 14, 32n Shay, Jonathan, 252, 253, 254 Sherman, Nancy, 253 Shue, Henry, 203 Simpson, Bob, 27 ‘simultaneous ostensible justice’, 178, 189 Smith, Dan, 51 Society of Peoples, 103–4, 105, 106–16, 119, 121, 122–3

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Force Short of War in Modern Conflict Somalia, 83 South Africa, 106, 121, 139 South Korea, 154, 163 Souva, Mark, 107 ‘sovereign authority’, 186 ‘sowma’ (short-of-war military action), 149–50, 166 sowma-resort principle, 162–3, 164–5 Sparrow, Rob, 22–3, 27 Statman, Daniel, 280n Stephan, Maria, 67 Strawser, B. J., 13, 17–23, 30, 33n, 49, 275 Sudan, 14–15 suicidal ideation, 238–43, 253–4, 259n Syria, 64, 128, 138–9, 143, 167, 299–300, 303 Taliban, 93, 142, 200 targeted killing, 141–2, 187–9, 189, 234n, 262–83, 294 technological asymmetry, 14–32 technology, 3–9, 13–14, 83, 98 ‘telepresent’ war, 15 terminology, 149–50 terrorism casuistry, 185–6, 189 counterinsurgency, 138–41 Enemark, Christian, 297 injuria, 226–8 international groups, 4, 132–3 International Law Association report, 87 non-state actors, 127 Obama, Barack, 80, 220 Pakistan, 162 police officers, 129 preventive force, 300 radical technological asymmetry, 29

sovereignty, 221 sowma-resort principle, 164–5 ‘in-between’ spaces, 82 technology, 84–5 United States, 252–4 Walzer, Michael, 290–1 Tesón, Fernando, 290–1 Theidon, Kimberly Susan, 121 This Kind of War, 248 Thompson, William, 43 To Hell and Back, 257n Tonkin Gulf, 251 torture, 33n Tostensen, Arne, 108 total war, 243–9 Totality and Infinity, 119 Toulmin, Stephen, 180–1 traditionalists, 297 ‘The Triumph of Just War Theory (and the Dangers of Success)’, 288 Trump, Donald, 187, 299–300 truth commissions, 120–1 Tsutsui, Kiyoteru, 109–10 Ukraine, 153 UN Charter, 58, 64, 163, 287 Article 51, 86, 96, 97 Chapter VII, 153 UN coalition force, 15 UN Declaration 1942, 249 UN peacekeepers, 65–6 UN Sanctions Committees, 106 UN Secretary General, 59, 63 UN Security Council Korean War, 163 Kosovo War, 58 legitimate authority, 97, 98 R2P, 64 sanctions, 106 UN Charter, 153 WMD, 94

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Index UN Security Sanctions Committee, 106 UN Universal Declaration of Human Rights (UDHR), 115 United Nations containment regime, 215 human rights, 109 last resort, 289 peacekeeping, 66 sanctions, 106, 109, 114 United States Afghanistan, 252–4 airstrikes, 167 civilian casualties, 84–8, 269–70 drones, 27–8, 38, 93, 96–7, 127, 294, 295, 303 Gulf War, 15, 159–60, 250–1 Iraq War 2003, 252–4 jus ad bellum, 82–3 no-fly zones, 163 sanctions, 109 Second World War, 249–50, 250 ‘in-between’ spaces, 182–3 targeted killing, 142 terrorism, 162 Vietnam War, 251–2 Walzer, 215 War on Terror, 288 Yemen, 290 United States Air Force, 155 United States Catholic Bishops, 3 ‘unjust aggressors’, 265 unmanned aerial vehicles (UAVs), 13, 23, 26–7, 27–8 Use of Force Committee of the International Law Association, 152–3 Vattel, Emer de, 174, 189 Victory through Air Power, 258–9n

Vietnam War, 154, 251–2, 257n, 259n, 288 ‘vim actions’, 149–50 violence and coercive acts, 44–7 and jus ad vim, 36–56 vis perpetua (continual use of force), 48 Vitoria, Francisco de, 39–40, 164, 174, 178, 189 Walzer, Michael Brunstetter and Braun, 149, 197 discrimination principle, 95 forces short of war, 148 foreign policy, 37–8 interpretation of the just war, 172–5 Iraq War 2003, 303 jus ad vim, 2, 6–7, 127 just war theory, 170–91, 288–93 last resort, 50 legalist approach, 39 ‘legalist paradigm’, 220–1 legitimate authority, 97 ‘measures short of war’, 79 moral equality of combatants, 5 morality of war, 23, 203 necessary pre-emption, 233 policing, 82 preventive force, 215–19, 234–5n principles of jus ad vim, 89–91 revisionist critics, 175–6 revisionists, 279–80n Strawser, B. J., 20–1 targeted killing, 276 Walzerians coercive acts, 42–3 and jus ad vim, 171–2 and revisionists, 8–9, 170–1, 176

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Force Short of War in Modern Conflict war, definition, 41–4, 284–7 ‘war of ethics,’ and jus ad vim, 176–7 War on Terror, 38, 288, 301; see also ‘global war on terror’ weapons of mass destruction (WMD), 89, 94, 98–9, 215, 252–3 Weber, Max, 62 Webster, Daniel, 233 Wellman, Christopher, 274 Williams, John, 85

Wilson, Capt. Tim, 257n Wilson, Woodrow, 108 Wood, Reed M., 65–6 World Summit Outcome Document (WSOD), 58–9, 64, 65 Yemen, 82, 83, 84–5, 93, 96–7, 182–3, 290 Yezidis, 64 ‘zone of peace’, 218, 221–2

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