International Human Rights Law

LJIL Symposium: A Response to Professor Gabby Blum and Professor Chris Kutz

[Dr. Janina Dill is a Hedley Bull Fellow at the Department of Politics and International Relations and Research Fellow in Politics at Merton College, Oxford] I am very grateful to Gabby Blum and Chris Kutz for their thoughtful comments on my paper. We agree on the fundamental challenge: killing combatants in accordance with the principle of distinction under International Humanitarian Law (IHL) is morally problematic. In my paper I engage the preferred remedy of a growing number of philosophers, which is to distinguish between individuals who are liable to being killed and those who are not. I show why it is impossible for IHL to regulate warfare accordingly. Nonetheless, I accept such an individual rights-based approach to justifying killing as morally appropriate in war. Professor Blum disagrees on the grounds that “killing in battle is not designed to be an execution”. That is, of course, true. Acts in war are an appropriate means to mete out neither moral nor legal punishment. But can we therefore dismiss as irrelevant the moral status of the individuals whose deliberate killing IHL sanctions? The impetus behind Blum’s own proposal is the conviction that combatants’ lives are no less valuable than others’. From this acceptance that all human life is of prima facie equal value generally springs the notion that individuals have a right to their own life that they can forfeit only through their own conduct. Blum holds that in war posing a threat is enough to be subject to the threatened combatant’s right to (presumably lethal) self-defense. It has to be an actual, immediate threat, not the kind of presumed potential threat that IHL is satisfied with, but it “does not matter if someone threatening is also morally guilty, because we have a right to defend ourselves even against the morally-innocent attacker,” or so Blum argues. I do not have the space to problematize the terms innocent and guilty here, but even if the would-be defender had no involvement in bringing about the situation in which he is threatened, his right to use lethal force against a likewise completely innocent attacker would at least be questionable. Crucially, this innocent threat/innocent defender scenario is rarely encountered in war. What if the would-be defender was guilty himself of posing a threat? The likeliest case in war is that the combatant supposedly exercising self-defense at the same time poses a threat to his attacker. Normally, in this case we decide who actually has a right to self-defense by making a judgement about the difference in moral status. That the victim of an assault uses force to fight back does not give her attacker a moral right to defend himself. If we refuse to take moral status into account and insist on the symmetry between combatants on both sides, such cases of “mutual self-defense” reduce the principle to absurdity. I do not argue that we should change IL either to reflect the liability approach or to challenge the symmetry between belligerents. Moreover, I wholeheartedly agree with Blum that it would be legally and morally preferable if IHL allowed the killing of fewer combatants and demanded that those who can be are spared. While such proposals have met with criticism by military practitioners, they certainly raise fewer concerns of practicability than distinction according to individual liability. Yet, they do not solve the problem this paper grapples with: the fact that IHL does not and, I argue, cannot vouchsafe the protection of individual rights in war. In his considered engagement with my paper Professor Kutz raises two questions that, in the kindest possible way, query my grasp on reality.

LJIL Symposium: A Comment on Dr. Janina Dill’s “Should International Law Ensure the Moral Acceptability of War?”

[Christopher L. Kutz is a Professor of Law at University of California, Berkeley, and is the Director of the Kadish Center for Morality, Law and Public Affairs] Janina Dill has written a smart and provocative paper, providing a powerful argument against what one might call “naive moralism” in the ethics of war.  In this, she is responding to a body of recent and influential work, of which American philosopher Jeff McMahan’s writing forms the core, which has offered an individual-centered moral analysis of the rules of war, meant to supplant the state-centered view of classical Just War Theory (JWT).  Against some of the natural conclusions one might draw from a moralized theory, Dill argues that the essentially collective nature of the ethics of war should be preserved, on epistemic grounds.  In particular, the collective liability of combatants, and immunity of civilians, is best explained by the difficulty of refining a moral analysis in many plausible cases of conflict. According to classical JWT, the ius ad bellum and the ius in bello are strictly separated, in the sense that the legality or legitimacy of the war as a whole rides independently of the liability of the individual participants in the war.  On this view, whether or not a belligerent state (and its leaders) are fighting a legal or illegal war, soldiers of those states are liable to be targeted just in virtue of their membership in the armed forces; by contrast, civilian non-combatants are immune from deliberate targeting whatever political support they have manifested for even an aggressive war.  Thus, in World War II, British and Wehrmacht soldiers stood on the same legal footing (attackable, and only liable for individual war crimes), as do pacifist British citizens and Nazi-supporting German civilians (immune from attack).  This collective, status-based approach to targetability is notably different from the individualized assessment of liability to attack that characterizes the criminal law, in which individuals are only targetable when they present particular threats to the lives or vital interests of others; and the permission to use lethal force is only granted to those defending vital interests (of themselves or others), and often not when that defense is the result of the defendant’s own wrongdoing (p. 8). In a number of recent books and papers, Jeff McMahan has argued that there are no plausible direct moral foundations for JWT, because on any compelling moral analysis — that is, any analysis sufficiently compelling to make claims about liability to lethal attack plausible — liability must be determined by individual culpability.  And when we take individual culpability into account, it is hard to avoid the conclusion that many individual soldiers — namely those permissibly defending themselves and others — are not so liable, while many non-combatants are.  McMahan himself avoids any direct action-guiding conclusion from his analysis, because of the prospect that absent clear rules of collective distinction, too much horror will result from an attempt by combatants to make the relevant distinctions. Dill accepts the McMahanian moral analysis, but she rejects the revisionary conclusion, that we should seek to tune our doctrines of war to more individualistic determinations.  Instead, she looks to alternative moral foundations for the collective character of war. To my mind, the most interesting aspect of a very interesting and perceptive article is her working through these alternatives.  She considers first the idea that war might nonetheless be given a consequentialist justification: that the gross principle of distinction, if applied in good faith by just and unjust belligerent nations alike, would be a “lesser evil” resulting in net fewer unjustified deaths.  But as she argues, there is no reason to think the material outcomes of current JWT do a better job than any alternative in minimizing unjustified deaths, since military victory is a consequence of material rather than moral factors.  More importantly, an individual moral analysis would result in the conclusion that aggressor soldiers should simply “keep still,” and cease presenting any threat to others.  Whatever one might say on behalf of JWT, one cannot think it approximates an outcome whose ideal case is the sudden pacifism of all of one side’s combatants, plus all of the others who are no longer at risk. The conclusion she draws is subtle.  Dill treats as central the “epistemically cloaked” nature of the choices presented by war, where the fog of war makes individual liability determinations implausible, and the tendency of even aggressors fighting (wrongly) in good-faith belief of permissibility makes war inevitable.  In such cases, when nations turn to war, IHL properly guides actors towards morally superior outcomes, even if it does not make those outcomes defensible in absolute terms. As she says, if something is indefensible, it cannot be made defensible by epistemic considerations.  But the benefits of a rule-of-law approach to war, with over- and under-inclusive bright lines, may itself be morally valuable, in serving to constrain the overall enterprise while recognizing its systematic, i.e. Collective, character.  This is, essentially, a Razian analysis of the value of using non-moral norms to coordinate a complex multi-personal enterprise, rather than the sort of full-bore collectivist analysis that some of us have gestured at.  Regular war is less evil than irregular war, but this is a distinction to tolerate, not to celebrate. I am in great sympathy with Dill’s discussion and conclusion, but might raise a couple of questions.