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Brian Orend–Just and Lawful Conduct in War- Reflections on Michael !"#$%&'(%)&*+",%-.'("/$%0'%1&23%45+,5/$0.'#%.'%60/7&5,%1&,852 9"$7.2:#;3%<20&'%=25'( >."2/53%)&*%&'(%?70,.#.@7AB%C.,D%EFB%G.D%H%:!&'DB%EFFH;B%@@D%HIJF ?"K,0#75(%KA3%Springer >$&K,5%L4)3%http://www.jstor.org/stable/3505049 . 9//5##5(3%EMNFHNEFHH%HH3HM Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at . http://www.jstor.org/action/showPublisher?publisherCode=springer. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Springer is collaborating with JSTOR to digitize, preserve and extend access to Law and Philosophy. http://www.jstor.org BRIAN OREND JUST AND LAWFULCONDUCT IN WAR:REFLECTIONS ON MICHAELWALZ7ER (Accepted2 February2000) "(T)hestructure of rightsstands independently of political alle- giance;it establishesobligations that are owed, so to speak,to humanityitself..." "Thereis noright to commitcrimes in orderto shortenawar." MichaelWalzer1 "Jus in bello" is the Latin term just war theorists use to refer to justice in war,to rightconduct in the midst of battle.American polit- ical theoristMichael Walzerhas developed an accountofjus in bello which has been influentialand subject to much debate, though not much resolution.This paperwill offer an updated,critical and thor- ough examinationof Walzer's account, seeking thereby to further work on the ethics of war and peace. The subjectof wartimejustice has enjoyed something of a renaissance in philosophical interest, no doubt owing to controversialevents in such recent wars as the Bosnian and Rwandancivil wars, Russia's campaignsin Chechnya, and NATO'sarmed intervention in Serbia over Kosovo. Walzer insists that jus in bello is a category separate from jus ad bellum, which concerns the justice of resorting to war. A war begun for the right reasons is, for Walzer,a war fought in response to aggression, defined as "(a)ny use of force or imminent threat of force by one state against the political sovereignty or territorial integrity of another..."2 Such state rights are themselves founded, ultimately, upon individual human rights to life and liberty. The most obvious example of an act of aggression would be an armed 1 MichaelWalzer, Just and UnjustWars (New York:Basic Books, 2nd ed., 1991),158, 210. 2 Walzer,Wars, 62. i Lawand Philosophy 20: 1-30,2001. ? 2001 KluwerAcademic Publishers. Printed in theNetherlands. 2 BRIANOREND invasion by one state, bent on taking over another,much as Iraq did to Kuwait in August 1990. But this requirementof just cause, in terms of resisting aggression, is not the only rule just war theorists like Walzerinsist on being followed priorto the resortto war. They also stipulatethat the war in questionmust be begun as a last resort, be publicly declaredby a properauthority, have some probabilityof success, be animatedby the right intention of resisting aggression and also be expected to produceat least a proportionalityof benefits to costs.3 Walzer reasons that we have not finished our normative labouronce we have determinedwhether a state has resortedto war justly, using these principles.For even if a state has resortedto war justly, it may be prosecuting that war in an unjustifiedmanner. It may be deploying decrepit means in pursuit of its otherwisejusti- fied end. Just war theory insists on a fundamentalmoral consistency between means and ends with regardto wartime behaviour.Since Walzerviews just war theory as the best interpretationof our shared discourse on the ethics of war and peace, it follows for him that we must likewise be committedto this core consistency:justified ends may only be pursuedthrough justified means.4 Concern with consistency, however, is not the only, or even the main, reason behind our endorsementof separaterules regulating wartime conduct. Such rules are also requiredto limit warfare,to prevent it from spilling over into an ever-escalating,and increas- ingly destructive,experiment in total warfare.If just wars are limited wars, designed to secure their just causes with only proportionate force, the need for rules on wartimerestraint is clear. Even though modem warfarehas displayeda disturbingtendency towards totality - particularlyduring the two WorldWars - it does not follow thatthe deathof old-timemilitary chivalry marks the end of moraljudgment. As Walzerproclaims, "(w)e still hold soldiersto certainstandards."5 Walzerclaims that our sharedwar conventioncommits us, at its deepest level, to three standardsof jus in bello. The first is one of 3 For more onjus ad bellum, see: Walzer,Wars, 3-33 and 51-1125; R. Regan, Just War:Principles and Cases (Washington,DC: CatholicUniversity of America Press, 1996), 3-86; J. B. Elshtain,ed. Just WarTheory (Oxford: Blackwell, 1992); and D. Luban, "Just War and Human Rights", Philosophy and Public Affairs (1980), 160-81. 4 Walzer,Wars, 3-20. 5 Walzer,Wars, 34-35. JUSTAND LAWFUL CONDUCT IN WAR:REFLECTIONS ON MICHAELWALZER 3 discrimination:armies are to discriminate or distinguish between militaryand civilian targets,and aim their lethal force only at legit- imate military, and military supply, targets. The second standard commits armies to launch only proportionateforce at these legit- imate targets.Finally, armies are not to employ methods which are intrinsically heinous; they may not commit actions which "shock the moral conscience of mankind."Walzer is emphaticthat we hold all soldiers to these three standards.Unlike ourjus ad bellumjudg- ments, which tend to be binary,condemning one side andjustifying the other for resorting to war, our judgments about right conduct apply across the board during wartime. Since jus in bello and jus ad bellum are separate,it is an errorto link the justice of conduct to the justice of cause: soldiers fighting for a just cause can just as readily run afoul of jus in bello as those prosecutingan unjustwar. We expect no more, no less, from soldiers of all sides than that they adhereto the three standardsof right conduct.6 Before examiningWalzer's understanding of the contentof these three standards,it is worth stressing how for him responsibility for fulfilling jus in bello differs from the responsibility inhering in jus ad bellum. Responsibility for the justice of resortingto war rests on those key members of the governing party most centrally involved in the decision to go to war, particularlythe head of state. Responsibility for the conduct of war, by contrast, rests on the state's armed forces. In particular,responsibility for right conduct rests with those commanders,officers and soldiers who command and control the lethal force set in motion by the political hierarchy. In general, anyone involved in formulatingand executing military strategyduring wartime bears responsibilityfor any violation of the jus in bello standards,whose content will be specified below. I. DISCRIMINATION AND NON-COMBATANT IMMUNITY Walzer insists repeatedly that the requirement of discrimination is the most importantjus in bello rule. Soldiers charged with the deployment of armed force may not do so indiscriminately; rather, they must exert effort to discriminate between legitimate 6 Walzer,Wars, 34-49, 127-224. 4 BRIANOREND and illegitimate targets. How are soldiers to know which is which? Walzeranswers: a legitimatetarget in wartimeis anyone or anything "engagedin harming".All non-harmingpersons or institutionsare thus immune from direct and intentional attack by soldiers. Since the soldiers of the enemy nation, for instance, are clearly "engaged in harming",they may be directly targeted,as may their equipment, their supply routes and even some of their civilian suppliers.Civil- ians not engaged in the military effort of their nation may not be targetedwith lethal force. In general, Walzer asserts that "(a) legit- imate act of war is one that does not violate the rights of the people against whom it is directed."7In response, one might ask: how is it that armed force directed against soldiers does not violate their rights, whereas that directed against civilians violates theirs?In the chaos of wartime,what exactly marksthe difference? One of the murkiestareas of Walzer'sjust war theory concerns the moral statusof ordinarysoldiers. His referencesto them exhibit, on the one hand, a humane sympathyfor their "sharedservitude" as "thepawns of war."On the other,his referencesoccasionally display a glib callousness, as when he concurs with Napoleon's (in)famous remarkthat "soldiers are made to be killed."8 How can soldiers be made to be killed when, as humanbeings, they enjoy humanrights to life and liberty? If it is our shared ideas about human person- ality which (somehow)justify humanrights, how can Walzerclaim that these possessors of personality be directly and intentionally 9 targeted with lethal force? The answer must be that soldiers do something which causes them to forfeit their rights, much as an outlaw country forfeits its state rights to non-interferencewhen it commits aggression. This is indeed the case for Walzer:"(N)o one can be forced to fight or to risk his life, no one can be threatened with war or warredagainst unless through some act of his own he has surrenderedor lost his rights."One could be forgiven for infer- ring from this principle that only soldiers of an aggressor nation 7 Walzer,Wars, 42-43, 135.
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