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The Philosophical Underpinning of “War Crimes” Statutes

photograph of destroyed apartment buildings

Over the past week, Russian forces have withdrawn from the areas surrounding Kyiv and Chernihiv, both located in Northern Ukraine. Belief among Western intelligence agencies is that this has been a repositioning, not a retreat. This withdrawal, however, was accompanied by disturbing reports, to put it mildly. Accusations against Russian soldiers reported by the Human Rights Watch include executions, repeated rape, torture, threats of violence, and destruction of property aimed against civilians in the area. These revelations come after air strikes against targets such as hospitals and theaters housing civilians.

The international outcry has been severe. U.S. President Joe Biden explicitly referred to Putin as a “war criminal” and called for a war crimes trial. Boris Johnson, Prime Minister of the U.K., stated this conduct “fully qualifies as a war crime.” President Volodymyr Zelensky of Ukraine accused Russia of genocide. However, Russian officials have dismissed the outcry, going so far as to claim that the scenes were staged.

These acts seem to violate the Geneva Conventions. Namely, the Fourth Geneva Convention which establishes protections for civilians in war zones. The convention specifically prohibits violence towards civilians, taking them as hostages, treating them in degrading and/or humiliating ways, and extra-judicial punishments like executions. When violations occur, the Convention tasks parties to it with prospecting responsible individuals through their own legal systems or to defer to international courts, like the International Criminal Court, when appropriate.

It is one thing to recognize nations have agreed to these treaties. However, legal agreement is different from morality. So, we should ask: What moral reason is there to avoid these practices?

A simple justification is a consequentialist one. Targeting civilians massively increases the suffering and death that wars inflict. The idea behind war crimes may simply just be to limit the horrific consequences of war by ensuring that the only people targeted by the war are those who are fighting it.

However, consequentialist justifications can always cut the opposite way. One might try to argue that, in the long run, unrestricted warfare could have better consequences than regulated, limited warfare. Much like the possibility of nuclear annihilation has prevented wars between major powers in the later half of the 20th century and onward, perhaps the possibility of any war becoming (even more) horrific would reduce the number of wars overall.

I am very skeptical of this line of reasoning. Nonetheless, there is a possibility, however remote, that it is correct. So, we should look elsewhere to justify war crimes statutes.

Many have thought long and hard about the morality of conduct in war – jus in bello. These “just war” theorists often determine what considerations justify the use of violence at the individual level and “scale up” this explanation to the level of states. What can we learn from these reflections?

First, violence is only justified against a threat. Suppose someone charged at you with harmful intent. However, you could stop the assailant by striking an innocent bystander; if you’re willing to do that to a bystander, then I might be afraid you’ll use any means available against me.

Would stopping me in my tracks justify attacking the innocent bystander? No, this seems false. And this is true even if attacking an innocent produced better consequences overall – the fact that you and your assailant would both be gravely injured does not justify minorly injuring the bystander.

So, most just war theorists propose a prohibition on the direct targeting of non-combatants. Perhaps the deaths of civilians may be justifiable if they are an unintended, regrettable consequence of an act that produces a desirable outcome. But military decision-makers are morally forbidden from directly and intentionally targeting civilians – an idea known as the doctrine of double effect.

Regardless, decision-makers do not have moral license to do anything so long as they don’t directly target civilians. Most just war theorists endorse a second criterion called proportionality. This means the goods gained by an act that unintentionally harms civilians must be proportionate to the harms. Suppose that bombing a mountain pass would slow an advancing army by a day. However, this would also destroy a village, killing at least one thousand civilians. This act does not target civilians, but it still seems wrong; delaying an advance by a day does not seem proportionate to the lives of one thousand innocents.

Finally, many just war theorists endorse a criterion of necessity. Even if a decision meets the other two criteria, it should not be adopted unless it is required to produce the good in question. Consider the case of the assailant again. You might be justified in defending yourself by shooting the attacker. However, if you also had a fast-acting tranquilizer gun this would change things. You could produce the same good – stopping the attack – without producing the same harm. Since the harm of shooting the attack is no longer necessary, it is no longer permitted.

Let’s extend this to war by re-imaging the mountain pass example. Suppose that the bombing would instead kill just one or two civilians. But we could also render the road impassable by using road spikes, caltrops and digging covered trenches. This would result in no civilian casualties. So, bombing the mountain pass, although not targeting civilians and now proportional, would nonetheless be unnecessary to achieve the goal of delaying the opposing army’s advance. And as a result it would not be justified.

With these criteria in hand, we can now clearly see that many of the Russian’s military’s actions are not just illegal, but they also fail to meet the most minimal standards for jus in bello. Many acts, particularly those in Bucha, directly targeted civilians. As noted earlier, this is the absolute minimum for moral justification. It is also unclear what, if any, purpose acts like executing civilians serve. Since Russian forces have now withdrawn from these areas, they clearly did not achieve whatever objective they were aimed at, unless the goal was merely to terrorize civilians (as the White House claims). But this might even undermine the Russian effort; why would the Ukrainian people put themselves at the mercy of a military that is unwilling to protect civilians?

Will anyone be held to account? It depends on what you mean. The Biden administration has announced new sanctions, the EU has as well and is proposing additional measures to member states. So, there will be at least economic consequences.

Most, however, would like to see the leaders behind these decisions face punishment. Unfortunately, this seems less likely. Russia is party to the Geneva Convention. But in 2019 President Vladimir Putin revoked Russia’s ratification of a protocol allowing members of an independent commission to investigate alleged violations of the Convention. He claimed that such investigations may be politically motivated. This sets the stage for a textbook example of circular reasoning – future investigations will be politically motivated because the Russian regime is not involved with them, and the Russian regime did not want to be involved because these investigations are politically motivated.

Unless the current regime feels compelled to punish the decision-makers directly responsible for these acts (a possibility that strikes me as very unlikely), then these crimes will likely go unpunished. Perhaps, in time, a new regime will take power in Russia and will seek to at least acknowledge and investigate these crimes as part of reconciliation. Until then, this should not stop us from labeling atrocities for what they are lest we grow numb to them.

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Ethical Obligations to Climate Refugees

photograph of waves threatening coastal city

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

According to projections, by 2060 the lower third of Florida, home to 8 million residents, will be underwater. Within just a few decades many of Miami Beach’s landmarks will be lost. In response, some areas plan to fight rising sea levels with new infrastructure and new sea walls while other areas plan for a “managed retreat.” However, there are many more places around the world where there isn’t the money or capability to prevent homes from slipping into the water. People losing their homes to the sea means that they will need to go somewhere, and as time goes on we can expect to see a rising number of climate refugees. So, what are our ethical obligations to those being displaced?

Climate change is causing the melting of ice sheets and glaciers and the expansion of sea water. Current estimates show that sea levels are rising by 3.6 mm per year. A 2019 study projected that sea levels will rise by 69-111 cm by 2100. (In February, however, a paper in Ocean Science argued that previous projections have been conservative and that sea level rises will be higher.) What this means is that by 2100, we can expect significant threats to many areas of human habitation. In addition to Florida, which faces a number of climate challenges, Brazil, Egypt, Cameroon, China, India, and Indonesia will all face serious problems. For Bangladesh, rising sea levels represents a growing existential threat. Flooding owing to rising sea levels could result in the displacement of hundreds of millions of climate refugees. Indeed, while 2011 estimates had 187 million people potentially having to flee their homes, recent figures now project that as many as 630 million people (that is roughly 12% of Earth’s population) may be displaced.

But this is not simply a humanitarian crisis where we might feel obligated to lend a hand. The fact that the relationship between rising sea levels and climate change is generally well known changes the moral situation. Our intervention is demanded not (only) as a response to those desperately in need of help, but as a matter of justice given the harms we’re responsible for. If a nation or group of nations emits carbon, which in turn raises sea levels, and thus causes people to be displaced from their homes, surely there is an added moral dimension concerning what aid is owed to climate refugees. Given their particular contribution to the problem, what unique obligations might Western nations, for example, bear?

First, there are potential legal obligations. According to international law, people who are fleeing persecution in their country can seek to enter another. However, the current definition of “refugee” doesn’t apply to people who flee their homes because of climate displacement. Recently this controversy was addressed by the UN Human Rights Committee, who in 2020, ruled that climate migrants cannot be returned to countries where their lives might be threatened by climate change. Unfortunately, this is not binding; the issue is controversial and remains disputed. There are some who believe that the original 1951 convention on refugees should be interpreted to include those who are fleeing climate disasters. Others, like Alexander Betts and Nina Birkeland have argued against trying to redefine what it means to be a refugee because it would be impractical; renegotiating the convention would likely result in a worse deal for refugees.

Where does this leave us? According to the “conventional view” as described by Joseph Carens, states are free to exercise considerable discretionary control over the admission and exclusion of immigrants. As this is a power often considered an inherent part of what it means to be sovereign, it would seem that nations are not obligated to help climate refugees. Indeed, international libertarians argue that the only obligations that extend beyond a state’s border concern respecting other nations’ right to self-determination and refraining from harming them. (Though an important exception to this is refugees who are governed under international agreement.)

Putting aside the legal matter of potential obligations, there are those who argue that a state should provide aid and accept climate refugees if that nation has disproportionately benefited from the combustion of fossil fuels. Since many Western nations are largely responsible for the increased carbon emissions, the rising sea levels, and thus the environmental disasters that follow, it is argued that the developed world has a special responsibility not only to restrict emissions, but to protect and assist the global poor who are facing fallout from said disasters. On the other hand, there are critics who argue that historical responsibility as a justification for an obligation to assist migrants is problematic.

The polluter pays principle, for example, holds that those who pollute should bear the costs of managing the fallout. In other words, responsibility is tied to historical facts. It suggests that a nation like the United States should be obligated to aid climate refugees because of its role in causing the problem. However, there are difficulties in attributing blame in this way because of our inability to identify the specific harms done and to trace them back to specific causal factors. This complicates our ability to say that any particular nation might be obligated to accept certain refugees. There is also disagreement about how far back this kind of responsibility goes. Should a nation be held just as accountable for emissions dating back to a time when the effects of climate change were not well known? Theorists, like David Miller, have argued that emissions prior to the 1980s were not inherently harmful and so don’t count towards historical responsibility.

On the other hand, some philosophers argue that considerations of historical responsibility are beside the point; what we owe to climate refugees need not depend on establishing causality. For example, Jamie Draper argues that high-emitting states have a responsibility to climate refugees because even since the 1980s there has been a foreseeable connection between rising carbon emissions and harmful consequences of climate change. Because of this a nation like the United States can be said to be obligated to help regardless of the specifics concerning the causal relationship. These nations were well aware of the risks; they knew their emissions would generate harmful effects. Their failure to take the appropriate precautions render them a guilty party. For Draper, it isn’t a causal connection, but a failure to take due care that obligates nations to aid climate refugees.

It is to recognize that this is a problem being felt today, not merely one we must plan to confront in the future. There are already millions of people facing the prospect of fleeing their home. Addressing this problem means answering difficult questions: Does it matter who caused climate change? Should one’s ability to bear these costs be factored in? Do nations, or regions, or corporations, or individuals bear the blame? Is there such a thing as collective responsibility that we all share? Will our moral and legal frameworks catch up before it’s too late?

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Criticism of Israel, Media Focus, and Bias

photograph of Jerusalem through barbed wire fence

As in the past, in the wake of this most recent bout of violence in Israel an argument has raged in the media over the proper bounds of criticism of the state of Israel — when, in other words, does criticism of Israel merge with Jew hatred? No sane person denies that criticism of Israeli policies is, at least under some circumstances, not equivalent to prejudice against Jews. Nevertheless, some defenders of Israel claim that what they call the disproportionate attention paid to the Israel-Palestine conflict by Western media and other critics of Israel is itself evidence of Jew hatred. It is this claim that I will evaluate in this column.

I will grant the premise of those who make this claim — to wit, that the Israel-Palestine conflict does receive more critical attention than other, worse conflicts around the world. This is not to underplay the moral enormity of Israel’s treatment of Palestinians; my claim is simply that there are even more egregious violations of human rights in other parts of the world that receive relatively less attention from certain quarters. In order not to beg any questions — “disproportionate” has a negative connotation — I will put the question to be answered as follows: “Is the relatively greater attention paid to the Israel-Palestine conflict over other, worse conflicts itself evidence of Jew hatred?”

There are a number of players who might be said to pay more attention to the Israel-Palestine conflict than other, worse conflicts, but I will consider three: the Palestinians themselves, Arab observers, and the Western media. First, let’s consider the Palestinians. Suppose that Smith is a shop-owner whose store is periodically raided by a Jewish shoplifter. As yet unable to catch the shoplifter, Smith is consumed by hatred for him. Meanwhile, in another town, a Gentile serial killer rapes and kills women. On the rare occasions when the thought of the killer comes to Smith’s mind, Smith feels some degree of indignation and pity. Still, he does not hate and resent the serial killer as he does the Jewish shoplifter. It seems to me that Smith’s attitudes are not evidence of Jew hatred. It is natural — not to say morally good, just natural or commonplace — to focus more attention on the moral wrongs perpetrated against oneself than on the moral wrongs perpetrated against distant others. To do so does not necessarily reveal prejudice against the ethnicity of the wrongdoer. By the same token, Palestinians are naturally more focused on the wrongs perpetrated against them by Israel than on other, perhaps worse conflicts.

Now consider Arab observers. Suppose that Adam is Smith’s cousin, and Adam is almost equally consumed by hatred for the Jewish shoplifter as Smith. Again, I do not think this relatively greater focus on the Jewish shoplifter is evidence of Jew hatred. It is natural — again, not morally good, just commonplace — for those who feel a kinship towards victims of particular wrongdoing to focus more on that wrongdoing, even if there is worse wrongdoing somewhere else in the world. Arab critics of Israel tend to feel a bond of ethnic kinship with the Palestinians, and so will naturally focus more attention on the wrongs done to them than to others. This may offend against some conception of moral equality according to which we ought to dole out our attention to wrongs precisely in proportion to their egregiousness, with no special attention paid to wrongs that are “closer” to us in any sense. My point is merely that even if this form of neutrality is morally required, those who offend against it do not necessarily reveal prejudice in doing so.

It might be objected that some Arab observers have a history of openly anti-Semitic statements. Suppose Adam had such a history. Given this, would Adam’s focus on the Jewish shoplifter smack of Jew hatred? Surprisingly, the answer is no. This is a subtle point, so I want to be clear. With a past history of anti-Semitic statements, we have good evidence that Adam is an anti-Semite. However, Adam’s focus on the Jewish shoplifter does not provide additional evidence, over and above Adam’s past statements, that Adam is an anti-Semite. Similarly, an Arab who criticizes Israel and has a history of anti-Semitic statements is not more likely to be an anti-Semite than an Arab who has a history of anti-Semitic statements but never criticizes Israel.

Now suppose that both the Jewish shoplifter and the Gentile serial killer are caught. It turns out that the Jewish shoplifter is a local “golden boy” who attends high school on a city scholarship, volunteers at soup kitchens, and plays varsity basketball. Many of his relatives hold important positions in government and the media, and many prominent members of the community rally around him, raising money for his legal defense. The serial killer, by contrast, lives on the margins of society, grew up in an abusive household, and had innumerable encounters with law enforcement prior to his most recent crimes. He’s represented by a public defender. Predictably the media, including local gadflies on the opinion pages of the local newspaper, focus a lot of their attention and ire on the golden boy. Once again, that they do this may be in some ways regrettable, as they ignore the serial killers’ victims in the process. There may be a moral argument for apportioning their attention and criticism differently. On the other hand, there is at least a partial justification (and not just a “man bites dog” explanation) for the focus in the fact that the golden boy receives a city scholarship. The point is that the greater focus on the golden boy is not necessarily evidence of Jew hatred. Similarly, Israel not only holds itself out as an upstanding member of the international community, but it also receives significant material support from the United States. These facts can explain why the Western media focuses attention and criticism on the Israel-Palestine conflict to a relatively greater degree than other, worse conflicts.

My conclusion, then, is that there are reasons that explain why both participants and observers pay more attention to the Israel-Palestine conflict than other conflicts — reasons that have nothing to do with Jew hatred. This is, of course, not to say that such attention is certainly not due to anti-Semitism. Rather, my conclusion is that the fact that, say, a member of the Western media focuses more attention on the Israel-Palestine conflict than other conflicts is not itself evidence — does not make it likelier — that this person is an anti-Semite.

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Yes Elon, There Is Space Law

image of deep space with nebulae and bright stars

Elon Musk has spoken at great length about the details of his envisioned human colony on Mars. Among other things, he has ideas about the legal and political contours of Martian life. In terms of the form of Martian government, Musk argues for a direct democracy in which the laws can easily be repealed. His company, SpaceX, is also making a gambit at escaping not only Earth’s gravitational effects, but its legal influence as well. In the various legal terms and conditions of the company’s Starlink app, SpaceX asserts that neither Mars, nor the space between it and Earth, are governed either by the law of any earthly nation or their international laws. (Activities on the Moon, however, will be governed by California law!) Instead Mars and the starships going there will freely govern themselves according to principles of self-government. However, the reach of Musk and SpaceX exceed their grasp.

The laws of the United States govern SpaceX, which is headquartered in California and incorporated in Delaware. In turn, the United States is signatory to a series of United Nations treaties that govern the activities of signatories with respect to outer space and celestial bodies — not limited to only the Moon. As such, SpaceX is subject to the existing laws that govern extra-planetary activity. The assertion by SpaceX that it will not be bound by existing law amounts to a strange choice of law clause, by which a corporation attempts (sometimes unsuccessfully) to prevent potential plaintiffs from forcing the corporation to litigate under less favorable law, or at least make the law that will govern corporate activity more predictable. SpaceX appears to be trying to create a choice of law clause that chooses no law at all.

Being more charitable, SpaceX’s terms can be interpreted as choosing a sort of natural law stemming from generic principles of reason. However, this likely won’t help SpaceX reach legal escape velocity either. Earthly international law is largely based on international treaties, but international treaties and other legal instruments are based on jus gentium, which is natural law stemming from generic principles of reason. SpaceX, trying to choose nothing, has instead chosen exactly what it wanted to avoid.

SpaceX’s status as a corporation is a significant source of its difficulty. A corporation is a legal entity, existing only under its charter, which is governed by the law of the country where it is incorporated. There is a sense in which SpaceX extinguishes itself by disavowing the laws of the United States under which it is incorporated. If SpaceX were a sovereign nation it would be able enter treaties with other nations as it wished. So an eventual Martian colony, if independent from any terrestrial nation, could declare itself unbound by any other nations laws. But as a corporation, SpaceX is much like the colonial enclaves of England in the Americas and elsewhere. These colonies were chartered corporations created by the British Monarch. Independence and self-rule are not automatically granted to colonies, as history amply demonstrates.

The comparison to colonies is apt, as SpaceX appears to adopt the Earthlight Foundation’s contention that it is the “inalienable right” of space pioneers to do as they like, including “use any resources they find” and “own any land or space” they inhabit. The use of “inalienable,” which means not able to be taken or given away, is not likely what the Foundation wanted to say. Presumably, they envision a sort of free market exchange allowing people to exchange — i.e., give away — rights of use for resources in exchange for other considerations. More important that this pedantic point is the air of colonialism and Manifest Destiny that wafts off of the language. Space and its contents are conceptualized as resources to be exploited, valued in economic terms. This is the mentality of sentient locusts, roving the stars to deplete them, like the alien invaders in Independence Day.

The laws of earthly nations often badly fail to reign in the bad behavior of corporations. However, a self-regulated, corporate space colony is not likely to be better. Neither SpaceX nor any of the other corporate space exploration programs are able to operate wholly without oversight. That is at least some small insurance against a Martian corporate hegemony.

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Pia Klemp and The Ethics of Migrant Taxiing

photograph of seawatch3

Pia Klemp made waves over the summer for rejecting the Grand Vermeil Medal. Paris had intended to award the German boat captain for her bravery, having rescued thousands of migrants in the Mediterranean, but Klemp refused to accept the award stating that, “We do not need authorities deciding about who is a ‘hero’ and who is ‘illegal’.” (Klemp is currently awaiting trial in Italy and could face up to 20 years in prison for aiding the illegal immigration of African migrants across the Mediterranean to Italy.)

The case of Pia Klemp is the culmination of several geopolitical factors. The European migrant crisis began in 2015 when refugees fleeing political instability and violence in the Middle East and Northern African countries began arriving on European soil. In particular, many migrants hailing from sub-Saharan Africa have recently undertaken journeys to the coast of Libya in an attempt to board a raft and cross the Mediterranean in search of safety and the promise of a better life in Europe.

Over the past few years, Pia Klemp has allegedly aided over 6,000 migrants in their crossing of the turbulent Mediterranean Sea by locating their ill-equipped and overcrowded rafts off the coast of Libya, helping them aboard one of the various search-and-rescue ships she has captained, and taxiing them to the shores of southern Italy.

Klemp and her supporters contend that the migrants are legitimate asylum-seekers who are willing to risk their lives in attempting to cross the Mediterranean on what are often inflatable pontoon boats. Some migrants have been quoted as saying that they would rather die than go back. Klemp argues that the migrants have compelling reasons to flee their home countries, but that they are being forced to come to Europe via the Mediterranean because European countries have closed their borders and there is no other legal way of getting there.

Another relevant concern stems from the principle of non-refoulement, a cornerstone of international law that states that no one should be returned to a country where they face persecution or danger. The Libyan Coastguard is currently under orders to return migrant-carrying vessels to Libya for processing. Recent investigations have shown that in some cases, the Libyan Coastguard has brought rescued migrants back to the Tripoli Detention Center where they experienced a lack of food and water, and beatings by armed guards with pipes and ropes. It was also reported that while some people were released to their country of origin, others were sold to a captor who tortured them and attempted to extract ransom from their families.

Klemp claims that the Italian government is wrongfully putting on a “show trial” and that “the worst has already come to pass […] Sea rescue missions have been criminalized.” However, there is another side to the story. Detractors of Klemp’s actions argue that engaging in migrant taxiing is wrong for two main reasons.

First, migrant taxiing does nothing to solve the root cause of the problem – political instability in sub-Saharan African countries. In fact, it may even contribute to increased rates of flight from these countries. Additionally, increased emigration could, in turn, lead to harsher penalties imposed on citizens who are caught attempting to leave their home nation.

Second, detractors of Klemp argue that although her actions may be driven by altruism, they have resulted in dire consequences in reality. The United Nations Refugee Agency estimates that the death rate of refugees attempting to cross the Mediterranean has risen sharply from 0.3% in 2015 to 1.95% in 2018. Some contend that this rising death rate is a byproduct of the increased presence of rescue vessels, such as Klemp’s Iuventa, present in the Mediterranean. The argument operates on the assumption that the greater the number of rescue vessels present (or believed to be present), the greater the chance migrants believe they have of being rescued at sea, and therefore, the greater the number of migrants willing to risk their lives crossing the Mediterranean. It also may be true that the presence of NGO rescue boats can encourage migrants to board vessels that are incapable of crossing the Mediterranean on their own and if they are not spotted, will be doomed to drown.

Evidently, several ethical concerns loom large in the case of Pia Klemp and migrant taxiing. Klemp and her supporters are firmly rooted in their belief that they have a moral obligation to rescue migrants at sea, while critics contend that migrant taxiing fails to address the root cause of the problem and may be a contributing factor in the higher rates of deaths of migrants attempting to cross the Mediterranean.

While Klemp’s heart may be in the right place, her actions in taxiing refugees across the Mediterranean could actually have adverse consequences of increasing the number of migrants and their deaths at sea. Perhaps a better, albeit more challenging, long-term solution would be to redirect and increase aid to the troubled regions of Africa from which refugees are fleeing. Such an approach would address the root cause of the problem by aiming to stabilize their political systems and reduce the number of desperate migrants seeking to make the dangerous voyage across the Mediterranean.

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Should the United States Invade Venezuela?

A landscape image of Caracas, Venezuela

Harvard’s Ricardo Hausmann has recently written a column claiming Venezuela is approaching D-Day: options are running out in the solution of the South American country’s crisis, and the only remaining solution, according to him, is the participation of a coalition of regional forces. Hausmann is quite explicit arguing that such a coalition should be led by the US.

Hausmann does not use these phrases in his article, but he is clearly thinking of “humanitarian intervention” and “responsibility to protect” (R2P). Both concepts are now common parlance in security studies and international law, yet they give rise to heated debates.

Continue reading “Should the United States Invade Venezuela?”