Proportionality in the morality of war

Philosophy and Public Affairs

Volumn 33, Issue 1, 2005, Pages 34-66

  Hurka, Thomas ^a  

^a NONE

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EID: 33845412548     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2005.00024.x     Document Type: Article

References (21)

1. 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Art. 51 (5) (b), in Documents on the Laws of War, 3d ed., ed. Adam Roberts and Richard Guelff (Oxford: Oxford University Press, 2000), p. 449. This Protocol has not been ratified by the United States, but its military accepts very similar statements. Thus, the United States Army's Field Manual 27-10 says, about the bombing of defended places, that "loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage to be gained"(U.S. Department of the Army, The Law of Land Warfare [Field Manual 27-10, 1956], par. 41). 2. Michael Walzer, Just and Unjust Wars, 2d ed. (New York: Basic Books, 1992), p. xiv. 3. For a lucid defense of this "do-nothing"baseline for proportionality judgments, see David Mellow, "A Critique of Just War Theory"(Ph.D. diss., University of Calgary, 2003). 4. See, e.g., the discussion of the "domestic analogy"in Walzer, pp. 58-59. 5. James Turner Johnson, Morality and Contemporary Warfare (New Haven, Conn.: Yale University Press, 1999), pp. 27-28; see also his Just War Tradition and the Restraint of War (Princeton, N.J.: Princeton University Press, 1981), p. 204, and Can Modern War Be Just? (New Haven, Conn.: Yale University Press, 1984), pp. 3, 25, 62. 6. U.S. Catholic Bishops, The Challenge of Peace: God's Promise and Our Response, reprinted in Just War Theory, ed. Jean Bethke Elshtain (New York: New York University Press, 1992), pp. 77-168, at p. 101. 7. Douglas Lackey, The Ethics of War and Peace (Englewood Cliffs, N.J.: Prentice-Hall, 1989), pp. 40-41. 8.
2. Joseph C. McKenna, "Ethics and War: A Catholic View," American Political Science Review 54 (1960): 647-58, at p. 651;
3. Jeff McMahan and Robert McKim, "The Just War and the Gulf War," Canadian Journal of Philosophy 23 (1993): 501-41, at pp. 512-13.
4. McMahan and McKim, pp. 502-06. 10. I borrow this analogy from McMahan and McKim, pp. 504-05. 11. It may be argued that lesser humanitarian aims are in fact sufficient just causes, just not ones that on their own satisfy proportionality; this is especially plausible if we think of the just cause condition as specifying types of goal that can justify war, whether or not every instance of them does. Even so, the point remains that goals that would not by themselves justify war can contribute to a war's proportionality when joined with other, weightier goals. 12. Lawrence Freedman and Efraim Karsh, The Gulf War 1990-91: Diplomacy and War in the New World Order (London: Faber & Faber, 1993), ch. 11, 19. 13. Additional Protocol I, Preamble and Art. 51 (5) (b), in Roberts and Guelff, pp. 422-23, 449. 14. This worry is expressed in
5. Judith Gail Gardam, "Proportionality and Force in International Law," American Journal of International Law 87 (1993): 391-413, at pp. 392-94.
6. The most prominent recent defender of the independence of the jus ad bellum and jus in bello has been Walzer, but his Just and Unjust Wars also downplays the importance of the proportionality conditions. These features of his view may be connected. While the discrimination condition Walzer concentrates on is indeed, on his reading, independent of the jus ad bellum, the in bello proportionality condition depends on it. More general attacks on the independence of the jus in bello, extending to the discrimination condition, are mounted in
7. Jeff McMahan, "Innocence, Self-Defense and Killing in War," Journal of Political Philosophy 2 (1994): 193-221,
8. Additional Protocol I, Art. 51, (7-8), in Roberts and Guelff, p. 449. 17. Paul Ramsey, The Just War: Force and Political Responsibility (New York: Scribner's, 1968), p. 437. 18. William V. O'Brien, The Conduct of a Just and Limited War (New York: Praeger, 1981), p. 100. Johnson takes a similar view of Israel's response to the PLO in the early 1980s; see Can Modern War Be Just? pp. 57, 59. I take it there is no point in assigning the "major"responsibility for civilian deaths to the side that uses them as involuntary shields unless this reduces the other side's responsibility. 19.
9. "Marines Wade into Dreaded Urban Battle," The Globe and Mail, March 25, 2003
10. Kenneth Pollack, The Threatening Storm: The Case for Invading Iraq (New York: Random House, 2002), pp. 133-37, 139-40;
11. Marcus Gee, "Stick to your Poetry and Pianos," The Globe and Mail, Sept. 27, 2002, p. A17 ;
12. Margaret Wente, "Who's Killing the Children of Iraq?," The Globe and Mail, Oct. 8, 2002, p. A23.
13. Paul Christopher comes close to adopting this view. To the charge that the first Gulf War was disproportionate because it caused the deaths of 40,000 Iraqi soldiers, he replies that "the responsibility for the deaths of Iraqi soldiers must rest with the Iraqi government,"since "Iraq could have prevented or ended the war at any time by complying with the mandate of the United Nations Security Council"(The Ethics of War and Peace: An Introduction to Legal and Moral Issues, 2d ed. [Upper Saddle River, N.J.: Prentice-Hall, 1999], pp. 84-85). 22. The intuitive conclusion about suicide bombers and voluntary shields can also be reached in another way, by a view that discounts all deaths on the enemy side by their victims'moral culpability with respect to the war or to acts in it. But this view raises issues beyond the scope of this article and departs, as I am trying not to, from the assumptions about legitimate targets found in international law. 23. The first disjunct is needed because the second disjunct, while discounting for voluntary shields, does not do so for suicide bombers. 24. McKenna, "Ethics and War,"p. 651. 25. See, e.g.,
14. David Luban, "Just War and Human Rights," Philosophy & Public Affairs 9 (1979/80): 160-81.
15. I owe this last argument to Jeff McMahan. 27. Richard Norman, Ethics, Killing and War (Cambridge: Cambridge University Press, 1995), ch. 4; David Rodin, War and Self-Defense (Oxford: Clarendon Press, 2002), ch. 6. 28. In F. M. Kamm's terminology, the benefit of not being tickled is here an "irrelevant utility"; in Samantha Brennan's, it does not satisfy the "universal constraint"a benefit must satisfy if it is to help justify killing. See Kamm, Morality, Mortality, Vol. I: Death and Whom to Save from It (New York: Oxford University Press, 1993), p. 146; and
16. Brennan, "Thresholds for Rights," Southern Journal of Philosophy 32 (1995): 143-68, at pp. 149-53.
17. McMahan, p. 196. 30. Norman, pp. 130-31; Rodin, pp. 132-38. 31. See
18. Stuart P. Green, "Castles and Carjackers: Proportionality and the Use of Deadly Force in Defense of Dwellings and Vehicles," University of Illinois Law Review 1999 (1999): 1-41.
19. Further relevant categories are those of allied soldiers and civilians, and neutral soldiers and civilians. I leave these aside in this article. 33. See Walzer, pp. 138-51. 34. After the war Gen. Norman Schwarzkopf expressed contempt for Saddam Hussein's willingness to squander Iraqi soldiers'lives. But he thought the responsibility to protect those soldiers belonged only to Saddam; Schwarzkopf's own duty was only to U.S. soldiers. See Jack Anderson and Dale Van Atta, Stormin'Norman: An American Hero (New York: Zebra Books, 1991), p. 164, cited in A. J. Coates, The Ethics of War (Manchester: Manchester University Press, 1997), p. 221. 35. McMahan, passim; Mellow, passim. 36. I say "virtually"because there may be some number (1,000? 10,000?) such that it is wrong to kill that many enemy soldiers to save one of ours. My point is simply that even if there is such a number, it is very high. 37. Common-sense morality therefore incorporates what C. D. Broad called "self- referential altruism"; see his "Self and Others,"in Broad's Critical Essays in Moral Philosophy, ed. David Cheney (London: George Allen & Unwin, 1971), pp. 262-82. 38. I defend a moderate degree of national partiality in "The Justification of National Partiality,"in The Morality of Nationalism, ed. Robert McKim and Jeff McMahan (New York: Oxford University Press, 1997), pp. 139-57. 39. F. M. Kamm has proposed grounding the distinction in a more complex causal condition; see her
20. "Justifications for Killing Noncombatants in War," Midwest Studies in Philosophy 24 (2000): 219-28.
21. Judith Jarvis Thomson, "Self-Defense," Philosophy & Public Affairs 20 (1991): 283-310, at pp. 289-90, 296, 307-08.