Reflections of a Broken Man

On Just War: Part III – Components (b) by StephenMac
June 2, 2010, 6:07 pm
Filed under: Reflections

**Currently listening to XOXOXO – Secret and Whisper**

Today’s class on political philosophy reminded me that I had neglected this series. You can find them herehereherehere, and here

As mentioned in that last post,

My argument has been so far that just war theory is a tragic necessity, tragic as it permits in certain circumstances the killing of humans, necessary in that we live in a sinful world, and that killing of humans is in defence of others. I argue that it is a moral framework for the ethical practice of war, that it holds the necessary middle ground between political realism (realpolitik) and pacifism, and that it must remain a moral theory rather than a legal one. Now, I want to describe the three components of just war theory, namely jus ad bellum (justice in going to war), jus in bello (justice in fighting war), and jus post bellum (justice in the post-war aftermath).

Jus in bello – The conduct of war.

It’s one thing to have the right intention in going to war, it’s another thing completely to fight it justly. One’s conduct in war is immensely important. Jus in bello is about the way that war is fought. It is a principle that aims to limit the conduct of war by ensuring that it remains proportionate and that it is discriminate: i.e., that the measures that are used are the minimum necessary to achieve its objectives, and that those measures discriminate between those who are targets, and those who are immune. The importance of jus in bello stems from the 16th century, when jus ad bellum had its foundations shaken when it moved away from a theological basis to a legal one. When jus ad bellum becomes hard to define objectively, jus in bello becomes incredibly important for the justness of a war.

Jus in bello has two main parts: discrimination and proportionality. Discrimination requires that soldiers in a conflict make realistic attempts to distinguish between those who are legitimate targets and those who are not. Central to this criterion is the concept of non-combatant immunity. As early as the 11th century, it was recognised that certain people should never be targeted in war: clerics, pilgrims, women and children, etc. By the 20th Century, this was known as non-combatant immunity, where only those who were active participants in a war were legitimate targets, and everyone else was immune. Violation of this became a war crime (“International Humanitarian Law ‐ Fourth 1949 Geneva Convention”,

Aquinas writes:

Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention. Now moral acts take their species according to what is intended, not from what is beside the intention, since this is accidental…And yet, though preceding from good intention, an act may be rendered unlawful, if it be out of proportion to the end.

In thinking about discrimination, Aquinas reminds us that our actions will often have two aspects to it: the intended consequence, and an unintended one. We should attempt to maintain the intended consequence while minimising the proportion of the unintended. This highlights the second aspect of jus in bello: proportionality. Proportionality demands that the tactics and methods of the war be in proportion to the ends sought. This criterion asks whether the tactics and military goals of the conflict are required or necessary to achieve the ends of the conflict as a whole. It weighs the consequences of the actions against the aims of that action.

As Walzer points out, “…soldiers could probably not fight at all, except in the desert and at sea, without endangering nearby civilians”. War involves civilian casualties, and so discrimination and proportionality demand that war makers make the utmost effort to be discriminatory, and to minimise the civilian casualties. There must be “double intention”: “…first, that the “good” be achieved; second that the foreseeable evil be reduced as far as possible… The intention of the actor is good, that is, he aims narrowly at the acceptable effect; the evil is not one of his ends, and, aware of the evil involved, he seeks to minimise it, accepting costs to himself” (Walzer, M., 2000: 155).

In short, jus in bello demands that the soldier restrict his conduct: he must make the utmost effort to discriminate between combatant and non-combatant, and that when failing to do so, minimise the harm to the non-combatant as much as possible. This will be explored further next post.