According to orthodox versions of Just War Theory - (choose one answer)
Group of answer choices

A nation-state that fights in accordance with the principles of Jus in Bello cannot have committed the crime of aggression (a nation-state commits the crime of aggression when it wages war without having a just cause for doing so).

The two parts of Just War Theory are not normatively distinct.

A nation-state that satisfies the conditions of Jus Ad Bellum need not satisfy the conditions of Jus in Bello.

The crime of aggression will be compounded (made worse) if the nation-state that committed the crime fails to fight in accordance with the principles of Jus in Bello. use these notes in your answer: Topic – Just War Theory (recall that Soran Reader refers to Just War Theory as “War-ism”).


1.	Introduction and Historical Background on Just War Theory (Henceforth JWT). 
2.	The Basic Distinction Between Jus Ad Bellum and Jus in Bello. 
3.	The Six Principles of Jus Ad Bellum – [Just Cause; Last Resort; Proportionality; Likelihood of Success; Right Intentions; Legitimate Authority]. 
4.	The Principles of Jus in Bello – [Proportionality; Discrimination].
5.	“Collateral Damage” and the Doctrine of Double Effect (Henceforth DDE).
6.	Two Important Issues Raised by Fotion.



1.	INTRODUCTION AND HISTORICAL BACKGROUND ON JUST WAR THEORY


 Think of JWT as a philosophical doctrine that occupies the middle ground between Realism (we discussed five versions – Athenian Realism in the Melian Dialogue; Extreme Realism Thesis; Strong Realism Thesis; Weak Realism Thesis; Pragmatic Realism) and War Pacifism. We will see below that distinguishing between JWT and some forms of War Pacifism is not an easy task. But it does seem as if the distinction between JWT and Realism (in all its forms) is clear. The “pragmatic” realist claims it is pointless to make moral judgments about war. The response I gave to “pragmatic” realism is consistent with what a proponent of JWT would say about the doctrine - the point of making moral judgments about war is to curb its excesses, to make war more humane for both innocent civilians and combatants. 

JWT is very different from what Soran Reader called “militarism” (war is a “positive human good,” a “necessary manifestation of an aspect of human nature” – see endnotes 1 & 7, pp. 179-180). War, for a proponent of JWT, is an extreme and regrettable means of resolving domestic and international conflict. War is not to be desired or actively pursued. In some circumstances, however, going to war is a matter of necessity. Other means of settling a dispute have been exhausted and refusing to fight would put the innocent in harm’s way and threaten other morally and politically significant human values. JWT tells us that in such circumstances, it is morally permissible to go to war. (Given that all six principles of Jus Ad Bellum must be satisfied, justifying the resort to war is far more onerous than I have suggested above. But we will get to the details and complexity soon). That being said, it is not acceptable to fight the enemy in any way that one chooses. The second part of JWT – Jus in Bello – specifies the moral rules and limits that combatants on all sides must adhere to. It is primarily these prohibitions that, if respected by all parties, minimise the death, injury and destruction caused by war and thereby make it more humane. Simply put, there are some ways of fighting a war that are morally better than others.
 In the Gospel of Matthew, 5th Chapter, Verses 38-39, Jesus Christ - while giving The Sermon on the Mount – tells his followers “Ye have heard that it hath been said, AN EYE FOR AN EYE, AND A TOOTH FOR A TOOTH: But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also” (The Holy Bible, King James Version, p.563). There are other passages in The New Testament in which it is said of Jesus that he encouraged his followers to reject violence (i.e. to be pacifists). Pacifism, however, became impractical in the 4th Century AD when Christianity was adopted as the state religion of the Roman Empire. Christian philosophers, theologians and other thinkers worked hard to balance Christian teachings with the exigencies of state power. A family of theories about the ethics of war were developed as a result. The aim of all these theories was to make war fair and more humane. This is the period, then, that JWT began to take shape as a full-blown account of right conduct in war. 

In the 17th Century, secular versions of JWT appeared and were discussed in Europe. Some were refined and developed further while others were rejected. New versions surfaced and were debated. These exchanges continued, and the debate is still, to this day, alive and well. 


 Although JWT is shorthand for a group of theories about the ethics of war, there is significant overlap between the group members. The principles mentioned above are included in most versions of JWT. And while there may be vigorous disagreement about the interpretation and cogency of various concepts in JWT, the centrality and moral significance of the Just Cause and Discrimination Principles are widely recognised. In addition, if the overall aim of JWT is to place normative limitations on war, a more specific objective of this group of closely related and overlapping theories is to restrain nation-states from going to war with one another. The fact that they prioritise the interests of nation-states is another important feature these theories have in common.




2.	THE BASIC DISTINCTION BETWEEN JUS AD BELLUM AND JUS IN BELLO


 All versions of JWT are divided into two parts – 

1. Jus Ad Bellum – Latin for Justice of the War. 

The key question this part of JWT tries to answer is: “under what conditions is a nation-state morally justified in going to war?” An alternative way of stating the question: “If a nation-state were to go to war, would it be morally justified in doing so? 


2.	Jus in Bello – Latin for Justice in War. 

The key question this part of JWT tries to answer is as follows: “is the war being fought in a morally acceptable way?” An alternative way of stating the question: “Is the conduct of the warring parties consistent with the moral rules and prohibitions that are meant to make war more just and humane?”

 Important to note that (1) & (2) are normatively distinct. What does this mean?
Answer – 

Even if a nation-state has satisfied ALL the requirements/conditions of Jus Ad Bellum, that nation-state is still morally obliged to fight in a way that conforms to the Principle of Proportionality and, more importantly, the Principle of Discrimination. More concretely, if nation-state B attacks nation-state A because B wants to conquer and settle A’s territory (or some part of it), then the crime of aggression has been committed against nation-state A. But the fact that A has been unjustifiably attacked does not exempt it from the obligation to refrain from morally objectionable conduct, such as the deliberate targeting of enemy civilians, once the war has begun. JWT tells us that nation-state A ought to be held morally and legally responsible for any crimes it commits while fighting. And B should be held morally and legally accountable for the crime of aggression and for any wartime violations of the principles of Jus in Bello.




3.	THE SIX PRINCIPLES OF JUS AD BELLUM – [Just Cause; Last Resort; Proportionality; Likelihood of Success; Right Intentions; Legitimate Authority].


 According to most versions of JWT, going to war is morally justified if and only if ALL of the following six conditions are satisfied. 


1.	Just Cause -

The resort to war must be backed by good reasons. The purpose of the Just Cause Principle is to identify and elaborate on the good reasons for going to war. 


a.	Self-Defence Against Aggression is, according to JWT, the paradigm good reason for going to war. If nation-state A is attacked by the armed forces of nation-state B, A can justifiably use violent means to repel the attack and safeguard its territorial integrity and political independence. But A is prohibited from going any further in its response to B’s act of aggression. B’s aggression cannot, for instance, be used by A as an excuse for the conquest and exploitation of part of B’s territory. 

The aggression can be ongoing (see above) or recent. As an illustration of the latter, consider a case in which the aggressor’s attack is successful and ends in military occupation of the aggrieved nation-state’s territory. Because the act of aggression was recent, attacking combatants who enforce the military occupation can be classified as self-defence against aggression and justified on that basis. 

Problem/Issue – 

The claim that going to war in self-defence is justified if and only if the act of aggression is either (a) ongoing or (b) recent is arguably problematic because aggression can take other forms. What if the crime of aggression is committed and a longstanding military occupation ensues. An account that conceives of aggression as either ongoing or recent implies that the right to use violent means in self-defence does not extend to nations and other communities occupied by a hostile power for considerably longer periods of time. But if the occupied group is a distinct political community that continues to inhabit and lay claim to the territory that was unjustly taken, then their use of violent means against members of the occupying military force should be classified as self-defence. The justifiable ends of such violence are to terminate the military occupation and regain the nation’s independence. If this is the case, then there are other contexts in which a nation-state or national group can have a just cause for going to war.

Response – 

If the occupied group is a distinct political community that continues to inhabit and lay claim to the territory that was unjustly taken, then perhaps the prolonged military occupation – which undermines the right to national self-determination – can be conceived of as an atypical form of ongoing aggression. 

b.	Defence of Another Against Aggression. If the crime of aggression is committed against a nation-state, its formal allies have a just cause for going to war in its defence. As in the case of self-defence (a), the aggression can be ongoing or recent. The emphasis on formal allies is supposed to rule out use of the conflict as a pretext for the simultaneous pursuit of morally questionable ends.   

c.	Humanitarian Intervention. In most versions of JWT, two forms of humanitarian intervention are a just cause for going to war. They are – 

•	Armed Intervention to stop genocide or “genocide-like” activity. The targeted group could be inside the borders of a nation-state (an ethnic minority – to take one example) or outside its borders (e.g. the citizens of a conquered nation). 

Problem/Issue – 

Unless such terms as ‘genocide’ and ‘genocide-like’ activity are clearly defined, there may be unnecessary interventions that cause more harm than they prevent. Setting this aside, the notion of going to war for “humanitarian” reasons is likely to be (and has been) abused. (There is a definition of ‘genocide’ in Article II of The United Nations Convention on the Prevention and Punishment of the Crime of Genocide. The UN definition, however, is deeply flawed).

•	Armed Intervention to restore order and stability if a nation’s government has broken down and there is chaos and anarchy (see the point about potential and actual abuse in the previous paragraph).

Note – 
In the previous two cases, the intervening nation-state appears to be the aggressor because it starts the war. But the intervening nation-state is not the original aggressor, and the intervention is justified because the costs of not intervening are much higher (in theory) than the costs of intervening. Armed intervention can also be justified by appeal to theories of morality other than Utilitarianism/Consequentialism. 

d.	Pre-emptive War. A nation-state has a just cause for going to war if there is extremely strong evidence that a full-scale armed attack against it is imminent. A pre-emptive strike will make it easier for the threatened nation-state to defend itself. 
Note - 

JWT makes a clear distinction between (1) Pre-emptive War and (2) Preventive War. 

Preventive War is a full-scale armed “response” to a vague threat of aggression at some point in the future (for example, “we believe nation-state X is in the process of acquiring enormously destructive weapons and X is ruled by a vicious tyrant who oppresses his people and has said very threatening things to us recently. And we allege that he is allied with violent, despicable groups that hate us…let’s take him out before he uses his weapons against us…oh, and it’s good that we’ll liberate his people in the process”). 

Preventive War is never justified according to JWT. 

Setting aside its ambiguity (what does ‘imminent’ mean?), the notion of Pre-emptive War can be and has been used as a moral and political fig leaf for Preventive Wars. 



Normative Foundations of an Armed Response to Aggression - 

The justification of an armed response to aggression typically appeals to principles and concepts that are central to various theories of morality. Here are some examples - 

•	The consequences of not going to war will be significantly worse than the consequences of going to war. From this it follows that going to war is morally justified. In other words, going to war is less costly, in terms of harm done, than not going to war, and so going to war is permissible. The theory invoked in this case is Consequentialism (note - what Soran Reader referred to as “Utilitarianism” is just a particular version of Consequentialism).
•	Theories that place a high value on personhood. This kind of theory tells us that what is essential to being human is the fact that we are persons. Persons are rational and autonomous. The good life for such beings is one in which freedom of choice and action are possible and actively promoted. Aggression and military occupation by another nation-state undermine the social and political conditions in which persons can express their rational autonomy and live meaningful lives. The value of personhood, then, justifies a defensive armed response that aims to expel the occupying military force and restore the institutions, laws and policies of a stable and free society in which the autonomy and rationality of persons can flourish.  
•	Other theories that emphasise individual rights, character and a range of other considerations. 


Just Cause Summary – 

There is a just cause for going to war in defence of one’s own nation if and only if that nation is under attack, has been recently attacked or is about to be attacked (Pre-emptive War).

There is a just cause for going to war in defence of formal allies if and only if those allies are presently under attack or have recently been attacked. There is also a just cause for going to war if genocide or “genocide-like” activity is taking place or when the government of a nation has broken down and there is, as a result, chaos and anarchy in the country. JWT tells us that in such circumstances, the objective of the intervening power should be to restore law and order and then leave.



2.	Last Resort – 


Because war does great harm (to the innocent and to combatants), there exists a very strong moral presumption against fighting. War should only ever be undertaken as a last resort. The last resort requirement makes it clear that non-violent means of resolving conflict must be tried first. 

Examples - Negotiations, offering of incentives, sanctions of various sorts, boycotts, ultimatums, pleas and so forth). 

Note – 

a.	Fotion points out that ‘last resort’ should be understood to mean ‘last reasonable resort.’ Otherwise, the requirement will never be satisfied because it’s extremely difficult – if not impossible - to exhaust all non-belligerent correctives. There can always be yet another round of negotiations. Numerous incentives can be offered. Sanctions can be tried ad nauseam etc.
b.	The problem for Fotion is that ‘last reasonable resort’ is a fuzzy and elusive notion. It may become less so when applied to specific, concrete examples. But that is a subject for further debate. 
c.	The last resort principle helps us understand why JWT does not allow Preventive Wars. Since the vague threat of war that gives rise to an armed preventive response is in the future, there is plenty of time to take various steps to avoid the confrontation (negotiations, offering of incentives, sanctions, boycotts, ultimatums etc.)



3.	Proportionality –


According to the Jus Ad Bellum Principle of Proportionality (PP), the resort to war is morally justified if and only if the benefits of going to war are significantly greater than the costs. 

An alternative statement of PP – 

The resort to war is morally justified if and only if the consequences of going to war are significantly better than the consequences of not going to war.


Note

a.	Because war is so unpredictable, estimates of the costs and benefits will be rough at best. They must, however, still be made.
b.	In estimating the costs and benefits of going to war, one must consider the interests and welfare of everyone likely to be impacted by the fighting (impartiality requirement).

Problem/Issue – 

Once again, concerns about vagueness. Specifically, does use of the word “significantly” (benefits of going to war must be significantly greater than the costs) make PP conceptually imprecise and impractical? That is up to you to decide.


4.	Likelihood of Success – 

Going to war is morally justified if and only if the war is likely to be successful.


Note

The Principle of Proportionality assumes that a war will be successful. It then requires an estimate of the projected costs and benefits. The Likelihood of Success Principle obliges us to approximate how likely it is that the war will be successful.

Problems/Issues – 

i.	Ambiguity of the term ‘success.’ Does it mean holding the enemy at bay? Total destruction of enemy forces? Preventing the annihilation of one’s own national group?
Reasonable Response - 
The meaning of ‘success’ is contextually determined. It just depends on the circumstances in each case. But the term may continue to be vague in at least some contexts.
ii.	Not clear at what point the principle forbids war. For war to be justified, does the probability of success have to exceed 0.5? Or 0.7? Etc. 
iii.	Is it always morally objectionable to fight if the likelihood of success is extremely low? What if a far more powerful adversary invades and makes it clear the purpose is to exterminate your national group? While armed resistance will likely be futile, can it plausibly be considered wrongful conduct deserving of moral condemnation?


5.	Right Intentions - 

Intention and Motive are often conflated. For our purposes, it is sufficient to distinguish these mental states in the following way – 

a.	Motive – has to do with what prompts someone to undertake an action. Example: I stay in touch with my sister because I love her.
b.	Intention – has to do with the end or objective an individual wishes to attain (hence the idea that intention “speaks” to action). Example: I intend to sleep for more than four hours/night from now on. 

Note

You can now understand why it is erroneous to say that the armed forces of nation-state Q have the wrong intentions if they go to war with hate in their hearts, or that they have the right intentions if they feel love for their enemies. Love and hate are motives. They are not intentions. 

The basic idea behind the Right Intentions Requirement is that the resort to war is morally justified if and only if a nation fights with the right intentions. By itself, that is not very informative. 

More specifically - 

Having the right intentions means aiming to act in accordance with the just cause for which a war is fought (e.g. intending to defend one’s nation against aggression; intending to end a genocide etc.).

The Right Intentions Requirement rules out pursuit of other (typically objectionable) ends in the course of defending oneself against aggression.

Notice that the previous four principles were procedural. The Right Intentions Requirement is not.




6.	Legitimate Authority – 

The resort to war is morally justified if and only if the decision to go to war is made by the entity that has the lawful authority and power to make such decisions.

The “entity” might a Queen or King, a President or some other kind of leader or a democratic institution. It depends on the structure of the decision-making process in each nation-state.


Note

a.	If the “entity” is an institution, it need not be a democratic body. 

b.	In the United States, Congress has the lawful authority to make the decision to go to war. The War Powers Act of 1973 permits the Executive Branch to send American armed forces into combat only if there is “statutory authorisation” by Congress OR if there is a national emergency involving an attack on the United States, its territories or possessions, or its armed forces. However, the Executive Branch must inform Congress within forty-eight hours of sending American troops into combat. Furthermore, the military cannot be deployed in combat for more than sixty days without an authorisation for the use of military force from Congress. The President does have the authority to decide how a war should be carried out once it begins.

c.	Fotion suggests that in civil or revolutionary war, legitimate authority can be determined by whether or not the parties carrying out the armed struggle have widespread popular support. Again, this is somewhat vague. But perhaps the demand for greater precision is unreasonable in this context.

 To repeat: the resort to war is morally justified if and only if all six conditions outlined above are satisfied.




4.	THE PRINCIPLES OF JUS IN BELLO – PROPORTIONALITY AND DISCRIMINATION



1.	Proportionality - 

The projected benefits of a specific military campaign, battle or operation must be significantly greater than the projected costs. 


Note

a.	The Principle of Proportionality rules out the use of excessive force (for example, carpet bombing an entire village because a few enemy snipers are hiding there and shooting at your troops; a major attack on a large military base or installation that is about to surrender; sustained aerial bombardment of a relatively unimportant munitions factory located in a densely populated civilian area). 

b.	That being said, the use of overwhelming force is not always ruled out by the Principle of Proportionality because in some circumstances, it may actually save a significant number of lives and limit damage to infrastructure and the environment.

The following rules of thumb for use by military commanders can be derived from the Principle of Proportionality - 

•	Identify ALL the available options and choose the one that is projected/likely to cause the least harm and destruction while still achieving the legitimate military objective.

•	If the best available option will, in all likelihood, cause excessive loss of life and damage to infrastructure and the environment, desist from attacking the target or defending whatever land/position one is holding.


2.	Principle of Discrimination (Henceforth POD) - 

ALL belligerent parties involved in war are bound by a strict moral obligation to discriminate between the enemy’s armed forces and its civilian population. Lethal violence can be used against the former but not the latter. POD is sometimes referred to as “The Principle of Non-Combatant Immunity.”

Issue/Problem – 

Some civilians are directly involved in the war effort. There are civilians (politicians), for instance, who plan and initiate wars of aggression. Other civilians work in war industries that produce the instruments of death and destruction. If they are making a direct contribution to the war effort, why should these civilians be immune, on moral grounds, from attack?

Possible Solution - 

Reformulate POD in the following way: “…are bound by a strict moral obligation to discriminate between an enemy’s armed forces and morally innocent enemy civilians (in other words, civilians who do not make a direct contribution to the war effort).

Examples -  

1.	Civilians who work in war industries can be legitimately targeted. 
2.	Civilians who work on a dairy farm that supplies mainly other civilians with dairy products cannot be targeted on the grounds that members of the opposing military sometimes consume milk and cheese produced by the civilians who work on the farm. 

Questions – 

a.	Is the distinction between a direct and an indirect contribution to the war effort unacceptably imprecise?
b.	What if civilians are making a direct contribution unwillingly? (Examples: their despotic, oppressive government forces them to work in war industries; combatants operating from within densely populated areas coerce civilians to fight or use them as “human shields”).
c.	And what about combatants who are forced to fight for a cause they do not themselves believe in? 

Regarding (b) - 

Require combatants to warn civilians of an impending attack so they have time to evacuate. Notice, however, that this will work only if there are effective means of warning civilians and the area is not so densely populated that timely evacuation is highly improbable. 

Note

POD also raises the issue of what counts as a legitimate military target (totalitarian/authoritarian political leaders? Government institutions where decisions about the war are made? A factory that manufactures food – 70 percent going to the military, 30 percent to innocent civilians?). 



5.	“COLLATERAL DAMAGE” AND THE DOCTRINE OF DOUBLE EFFECT


 How do we interpret the Principle of Discrimination in the context of modern warfare?

a.	We insist the principle is absolute – killing or injuring civilians in war is always wrong and impermissible. But what seems to follow from this absolutist interpretation is the conclusion that modern warfare is in practice always immoral (because as we have seen, modern warfare invariably kills or does serious harm to morally innocent civilians). If this is the case, then pacifism may be the only defensible philosophical position about war.

b.	The other option is to modify the principle in such a way as to allow for what is commonly known as “collateral damage.” But ‘collateral damage’ is shorthand for the Doctrine of Double Effect (DDE). The conditions constitutive of this doctrine are stringent and cannot easily be satisfied. Whether or not DDE will allow a proponent of JWT to avoid the conclusion that modern warfare is in practice always immoral is therefore unclear.
According to DDE, it is morally permissible for a rational agent to bring about some objectionable state of affairs (such as the death of innocent civilians in war) if and only if that state of affairs is a merely foreseen secondary effect of pursuing a morally worthy objective (such as the destruction of a high value military target). For this to be the case, certain conditions specified by DDE must be satisfied – 

1.	The agent’s intended final end must be morally worthy.

2.	The intended means to the final end must be morally permissible.

3.	The morally worthy end must be proportionate to the morally objectionable secondary effect.
4.	The morally objectionable secondary effect must not be one of the agent’s ends, nor can it be a means to his ends (this condition rules out the intentional targeting of civilians for political or other purposes). 

Question -  
Are the preceding conditions likely to be satisfied in a highly stressful, life threatening situation such as armed combat?


6.	TWO IMPORTANT ISSUES RAISED BY FOTION


a.	Does JWT need to be modified (or even abolished) in light of the character of modern warfare? 

Recall the following passage from my lecture on the Impact of Modern Warfare on Civilian Populations: “…in her 2001 book titled Old and New Wars: Organized Violence in a Global Era (Stanford University Press, p.100), Mary Kaldor reports that by the end of the 20th Century, civilian casualties accounted for eighty percent of combat related deaths.”

b.	Today, there are a significant number of armed conflicts between nation-states and sub-national groups. Does JWT need to be modified in light of this fact?





               ----------------------------------------------------END of LECTURE---------------------------------------------------