Abstract
Through a critical engagement with Jeremy Waldron’s work, as well as the work of other writers, I offer an account of the relative scope of the morality of war, the laws of war, and war crimes. I propose an instrumentalist account of the laws of war, according to which the laws of war should help soldiers conform to the morality of war. The instrumentalist account supports Waldron’s conclusion that the laws of war justifiably prohibit attacks on civilians even if it turns out that some civilians lack a moral right not to be killed. Importantly, the instrumentalist account also offers what Waldron thinks impossible: a non-consequentialist defense of the failure of the laws of war to prohibit the killing of nonthreatening combatants. Finally, I argue that new war crimes can be broader than the morality of war as well as established laws of war and that many of the arguments for defining war crimes more narrowly than either the morality of war or the laws of war are unconvincing. In all of these ways, I hope to carry forward Waldron’s project of exploring the relationship between law and morality in war.
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Notes
Waldron may have these issues in mind when he writes in a footnote that his essay ‘does not explore the distinction between lawful and unlawful combatants’ (Waldron 2010, p. 82 n. 7) though I suspect not. I suspect that Waldron wished to note, without discussing at length, that some have denied the moral force of the legal convention distinguishing lawful from unlawful combatants.
It is possible that the laws of war should reflect the fact that soldiers cannot be sure that their cause is just. The instrumentalist account I develop can accommodate this possibility but I will not explore it further.
My own view (Haque 2011b) is that the morality of war and the laws of war converge on two grounds of liability: individuals forfeit their moral and legal right not to be killed in war when they either directly participate in hostilities or assume a continuous combat function in an armed force or armed group, at least on behalf of an unjust cause. The main gap between law and morality is that mere membership in a state armed force, even one fighting for an unjust cause, makes one legally liable but, in my view, not morally liable to be killed.
If soldiers often ought to do X in the fact-relative sense but Y in the evidence-relative sense then soldiers and their commanders have reason to develop new methods of gathering and evaluating information so that in the future they will best do what they ought to do in the fact-relative sense by doing what they ought to do in the evidence-relative sense.
Perhaps when it comes to the laws of war, we should adopt exclusive legal positivism not as a matter of analytical jurisprudence but as a matter of normative jurisprudence. For more on normative exclusive legal positivism see Waldron (2001).
This paragraph condenses arguments made at greater length in Haque (2012).
I will use ‘unintentional’ somewhat loosely, to describe both harming an immune person as an unintended side-effect of your actions and intentionally harming a person whom you reasonably but mistakenly believe is morally liable. For a more methodical treatment see Haque (2012). I will also assume that the laws of war could never justifiably permit intentional killing of immune civilians, since such a permission would lead soldiers to commit much more serious moral wrongs than they would avoid.
For example, soldiers generally are morally permitted to tend to wounded fellow soldiers rather than wounded civilians if they cannot effectively tend to both.
I would add that political leaders and military commanders should not place soldiers in circumstances in which complying with the laws of war will prove too much for too many of even the best-trained soldiers.
Indeed, domestic criminal law seems to regulate ordinary violence tolerably well without a domestic analogue to the laws of war.
Notice that new war crimes generally need not create uncertainty or inconsistency in the law so long as new war crimes merely prohibit what the existing laws of war do not. Problems only arise if a new war crime prohibits what the existing laws of war require or vice versa.
For example, the requirements of distinction and discrimination are best understood to prohibit recklessly and negligently killing civilians, yet under the Rome Statute it is only a war crime to intentionally or knowingly kill civilians.
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Haque, A.A. Law and Morality at War. Criminal Law, Philosophy 8, 79–97 (2014). https://doi.org/10.1007/s11572-012-9165-x
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DOI: https://doi.org/10.1007/s11572-012-9165-x