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Cry Havoc!: The Morality of War

photograph of destroyed building in Ukraine

When it comes to war, does anything go? Is there no morality nor immorality in war? Is it all just prudence or imprudence, success or failure? Realists have no use for ethics; pacifists oppose all violence; just war theorists draw lines in the sand; and reductive individualists say that what is right never changes. Who should we believe?

The scholars and diplomats who call themselves “realists,” believe that morality simply does not apply to war. Realists have been, in fact, the most influential actors in American foreign affairs since World War II. The position they take, however, goes back to Thucydides, Machiavelli, and Hobbes – who all thought that morality had nothing to do with politics. Nations are always in a “state of nature” with respect to their neighbors. Even when no shots are being fired, the “war of all against all” persists – no overarching authority exists to adjudicate disputes. While morality may govern the interactions between fellow citizens during peacetime, it has no purchase when it comes to the relations between autonomous states.

Worldwide, there are at least sixteen wars going on right now, and more than a million people have been killed. Many voices from many countries decry both how these wars started and how they are being conducted. Hopefully, most people will agree that some things – rape, torture, the murder of civilian noncombatants, the purposeful destruction of the basic infrastructure needed to sustain civilian lives – are morally wrong and should be universally condemned. If that is the case though, we must also reject the realist claim that morality has no place in war.

Perhaps war is nothing but immorality; perhaps all war is morally wrong. This is what “pacifists” believe. Even relatively restrained armed conflicts necessarily involve mass killing. That certainly looks wrong, doesn’t it? Instead of resorting to the taking up arms, the moral resolution of conflict demands and arbitration and compromise.

But what can a nation do if it is attacked? If we think that everyone has an inherent right to self-defense, shouldn’t we think countries do too? Must we stand by as innocents are victimized? Should we never intervene?

Just war theory has been trying to provide answers to these questions for at least sixteen-hundred years. It begins by distinguishing between jus in bello – justice in starting or joining a war – and jus ad bellum – justice in the conduct of a war. A just war must have a (i) just cause, be (ii) waged by a legitimate authority, as (iii) a last resort, and have a (iv) reasonable hope of success, while also being (v) a proportional response.

If it is to be a just war, the legitimate authority waging the war (i) must only undertake actions that are a military necessity, and (ii) always do so in a way that discriminates between people who are combatants and non-combatants. “The rule of proportionality,” according to West Point’s Lieber Institute on Warfare, “requires that the anticipated incidental loss of human life and damage to civilian objects should not be excessive in relation to the concrete and direct military advantage expected from the destruction of a military objective.”

These principles, and variations thereof, have been debated, extended, revised, etc. for over a thousand years. Unfortunately, they may be, as Hamlet put it, “More honored in the breach than the observance.” I will only give one example. For many older Americans, the war waged in the Pacific against the Tôjô regime after the devastating surprise attack on Pearl Harbor would be an exemplar of a just war. Yet, John Rawls, the most influential American moral philosopher of the twentieth century who fought in the Pacific himself, on the fiftieth-anniversary of the destruction Hiroshima with an atomic bomb wrote, “I believe that both the fire-bombing of Japanese cities beginning in the spring of 1945 and the later atomic bombing of Hiroshima on August 6 were very great wrongs” – and deployed just war theory to prove it.

Is there a way to look at the ethics of war without becoming a realist or a pacifist or stepping into the quick-sand of just war theory? Well, why think there is anything special, from a moral point of view, about war – other than it being especially morally abhorrent? If we have a moral code or moral rules that we follow in everyday life, why shouldn’t they apply in times of a war?

Here is the most important objection to just war theory: We would not need a separate moral theory about the ethics of war unless we meant to exempt some abhorrent conduct from ordinary moral standards.

The view that war is not exempt but bound by the same moral principles that govern the rest of human life is often called reductive individualism. It is startling, at least to me, that this is considered to be a new view. Perhaps it shows the power of nation states to shape our thinking that no one previously advocated the view that the morality of war is just ordinary, everyday morality.

I will not defend reductive individualism here. I will just make two quick points. Given the horrific nature of war, it may well be that reductive individualism is barely distinguishable from pacifism, and so, in that sense, is hardly new. On the other hand, even if we do not become reductive individualists, it may still be valuable to have this thought in the back of our mind as we follow current events. Is what I am seeing – whether or not it conforms to the laws of just war theory – moral? Not moral in any sophisticated theoretical way, just: is what I am seeing now before me right or is it wrong?

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Should the U.S. Continue Aid to Ukraine?

photograph of Ukrainian flag on military uniform

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.

On Wednesday, September 7th, U.S. Secretary of State Anthony Blinken announced a new aid package to Ukraine worth over $1 billion. The announcement came during what may be a critical juncture for the war. Ukraine’s counter-offensive has been slower than initially hoped, leading U.S. officials to question Ukrainian military strategy. However, progress has been made in recent weeks – the Ukrainian military has broken through the first line of Russian defenses in the south and liberated settlements. Further, there is some reason to believe future gains may come at an accelerated rate, as intelligence officials believe the Russian military concentrated its defenses at the first line.

Regardless, continued U.S. aid to Ukraine is no longer an ironclad guarantee. Although a majority of U.S. citizens still approve of aid to Ukraine, poll numbers have shown changing attitudes in recent months. About half of Republican respondents polled feel that the U.S. is doing too much to help Ukraine, and that they prefer ending the war as soon as possible, even if Ukraine concedes lost territory to Russia. Further, despite a majority of Democrats and independents favoring aid to Ukraine even in a prolonged conflict, support for that position has declined somewhat. During the Republican presidential debate in August two candidates, Vivek Ramaswamy and Ron DeSantis, stated they would end U.S. aid to Ukraine (in DeSantis’s case, this was qualified with the statement that he would stop aid unless European nations “pull their weight”). Donald Trump has suggested that all aid to Ukraine should pause until U.S. agencies turn over alleged evidence that incriminates President Joseph Biden.

Given the amount of aid the U.S. has sent to Ukraine – about $76 billion at the time of this article’s writing (although Congress has approved up to $113 billion) – it is worth pausing to weigh the moral arguments for and against continuing to provide aid.

Before beginning that discussion, I want to note two things.

First, while aid to Ukraine is normally reported in dollar amounts, this is misleading. The U.S. has not sent $76 billion in cash to Kyiv. While some money has gone to financing, significant portions of the aid are supplies from the U.S. stockpiles, training Ukrainian soldiers, and collaborating on intelligence. The value of the aid is estimated at $76 billion but this does not mean the U.S. has spent $76 billion. Less than half of the aid has been cash, and some portion of this figure includes loans.

Second, there are arguments about aid this article will not consider. Namely, these concern the strategic or political value of aiding Ukraine. One might argue that a repulsion of the invasion would humiliate and weaken Putin’s regime, thereby advancing U.S. interests. Alternatively, one could argue that if the war effort fails while the U.S. sends aid, it could damage U.S.’s standing internationally; there would be doubts that cooperation with the U.S. is sufficient to ensure security. While these considerations matter and should enter our decision making, they are too complex to discuss in sufficient detail here.

What arguments might someone make against continuing aid to Ukraine? The most common arguments in public discourse stem from what the U.S. government ought to prioritize. For instance, during the Republican primary debate, Ramaswamy commented that the U.S. would be better off sending troops to the border with Mexico. Trump has similarly questioned how the U.S. can send aid to Ukraine but cannot prevent school shootings.

The idea here appears to be something like this. Governments have obligations which should shape their decisions. Specifically, governments have greater duties to resolve domestic issues and help their citizens before considering foreign affairs. Thus, the claim here seems to be that the U.S. should simply spend the resources it is currently allocating towards Ukraine in ways that more tangibly benefit citizens of the U.S.

There are a few reasons to be skeptical of this argument. First, without a specific policy alternative it is not clear what those who utter this argument are suggesting. For any particular program, it is always theoretically possible that a government could do something more efficient or more beneficial for its citizens. But this claim is merely theoretical without a particular proposal.

Second, this argument may pose what philosophers call a false dichotomy. This fallacy occurs when an argument limits the number of options available, so that one choice seems less desirable. False dichotomies leave listeners with an “either this or that” choice when the options are not mutually exclusive. Consider Ramaswamy’s proposal in particular. It is unclear why the U.S. could not both provide military aid to Ukraine and deploy soldiers to protect its borders.

Third, not all aid sent to Ukraine could clearly benefit U.S. citizens. For instance, it is not clear how anti-tank missiles, mine-clearing equipment, or artillery can be used to solve domestic issues in the U.S.

More compelling, however, are the arguments that may appeal to the long-term consequences of prolonged war in Ukraine. Some may point to more speculative consequences. Perhaps a long war in Ukraine will result in a more hostile relationship between Western nations and Russia. This is especially true given recent discussion of Ukraine joining NATO and Russian officials’ attitudes towards the alliance. Further, a prolonged conflict may create more tense relationships between the U.S. and China, and could provide a diplomatic advantage to the latter. So, some might argue that it could be in the interests of long-term peace to bring an end to the war in Ukraine; the more strained these relations become, the less probable cooperation between major powers becomes.

Less speculative is the simple fact that, the longer the war drags on, the more people will die. The more battles fought, the more casualties. Additionally, given that the Ukrainian military is now using munitions like cluster bombs and the Russian military has blanked portions of Ukraine with land mines, it is certain that the increased casualties will include civilians. Given that there is moral reason to avoid deaths, we may have moral reason to bring an end to the war in Ukraine to reduce the number of lives lost – the sooner it ends, by whatever means, the fewer people will die.

However, proponents of aid to Ukraine also appeal to the long-term consequences of current events. In particular, some argue that failing to support Ukraine’s war effort will enable future aggression, specifically, aggression by Moscow. The idea is something like this. The costlier the war is for Russia, the less likely its leaders will be to pursue war in the future. Further, the more support that nations like the U.S. are willing to provide to nations that are the victims of aggression, presumably, the less likely it would make future aggressive acts. Although a prolonged war in Ukraine will lead to a greater loss of life now, one might argue that in the end it will prevent even larger losses in the future by changing the cost-benefit analysis of future would-be aggressors.

Perhaps the most compelling argument for continuing aid to Ukraine comes from just war theory – the application of moral theory to warfare. Just war theorists often distinguish between jus ad bellum – the justification of going to war – and jus in bello – the morality of the conduct of combatants once war has broken out. Typically, just war theorists agree that wars of aggression are not justified unless they are to prevent a future, more severe act of aggression. Defensive warfare, in particular defensive warfare against an unjust aggressor, is justified.

To put the matter simply, Ukraine has been unjustly invaded by the Russian military. As a result, the efforts to defend their nation and retake captured territory are morally justified. So long as we have moral reason to aid those who are responding to unjust aggression, it seems we have moral reason to aid Ukraine. For many, this is enough to justify the expenditures required to continue military aid.

Of course, one might question how far this obligation gets us. It is not clear how much we are required to aid others who have a just pursuit. Resources are finite and we cannot contribute to every cause. This point will be more pressing as the monetary figure associated with aid to Ukraine rises, and our public discourse questions the other potential efforts towards which that aid could have been directly.

As noted earlier, however, there are some reasons to question arguments of this sort when they are light on specifics. It is one thing to reassess the situation as circumstances have changed and find that your moral obligations now seem to pull you in a different direction. It is another entirely to abandon a democratic nation to conquest simply over sophistry. The severe consequences of our choices on this matter should prompt us to think carefully before committing ourselves to a particular plan of action.

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How I Learned to Worry About the Bombs: Cluster Munitions in Ukraine

photograph of cluster bomb model

On Friday, July 7th, Colin Kahl, the Undersecretary of Defense for Policy, announced that the U.S. is sending additional military aid to Ukraine, including cluster munitions or cluster bombs. Cluster munitions are, effectively, bombs that contain many smaller bombs – they are designed to open mid-air before reaching their target, releasing smaller bombs, called submunitions or “bomblettes,” into a large area. Military decision makers view them as more effective than traditional artillery but cheaper than more advanced weaponry like guided missiles. Nonetheless, the Biden administration has faced pushback for this decision. U.S. allies have criticized the decision and some Democrats in Congress have expressed concerns.

The problem is that cluster munitions pose significant risks to civilians. All munitions can fail – there are still unexploded bombs from the Second World War found in Europe. Since cluster munitions may contain hundreds of submunitions, failure of at least one submunition is significantly more likely than the failure of a conventional explosive. Further, because submunitions are numerous and small (some the size of a tennis ball), it is difficult to determine when one has failed to detonate and to track it down afterwards.

For instance, the United States made use of cluster munitions to heavily bomb Laos during the Vietnam war, in an effort to disrupt North Vietnamese supply lines. As much as 30% of the munitions may have failed to detonate as intended. The Mines Advisory Group reports that it disarmed its 300,000th bomb in Laos since beginning operation there in 1994. They also estimate that 50,000 people, half of whom were children, were killed by unexploded ordnance in Laos, with 20,000 of those deaths occurring after the war in Vietnam concluded. Civilians may unintentionally activate the explosives after unknowingly stepping on them, or when attempting to move or scrap the munitions.

As a result, many nations have sought to eliminate the use of cluster munitions. The UN Convention on Cluster Munitions has 108 signatories. These nations agreed to never produce, store, transfer or use cluster munitions, and to destroy their stockpiles of these weapons. Notably, the United States, Ukraine, and Russia did not sign on to the agreement.

Is it morally justifiable for the U.S. to send cluster munitions to Ukraine? I have previously written on just war theory and the war in Ukraine. In that discussion, I enumerated three criteria that theorists assess to determine the permissibility of wartime acts. To be morally justified, first, acts must not intentionally target civilians. However, acts which knowingly result in the deaths of civilians may be permissible. This is known as the doctrine of double effect. But justification requires two further standards. The harms of the act must be proportionate to the good that it aims to secure, meaning the outcomes it aims to achieve must “fit” the harms produced; the greater the harm, the greater the gain must be. Additionally, the harms ought to be necessary to achieve the goal – if there is some other, less harmful measure that can bring about the same results, then the more harmful act is not justified. With this in mind, let us consider some of the arguments public officials have offered to defend this decision.

Secretary of State Anthony Blinken argued, among other points, that providing cluster munitions to Ukraine would not radically change the risk to civilians – after all, the Russian military has already used cluster munitions. In fact, independent investigators believe that the Russian military deliberately targeted civilian locations with cluster munitions. Indeed, then White House Press Secretary, Jen Psaki commented on these reports stating that “If that were true, it would potentially be a war crime.”

Ultimately, this point fails to demonstrate anything from a moral point of view. Past wrong acts do not justify further, albeit lesser, wrong-doing in response. Even if there is already a risk posed to civilians from prior Russian use of cluster munitions, further use increases that risk. Thus, this point raised by Secretary Blinken is either irrelevant or incorrect, and perhaps both.

Several members of the Biden administration have emphasized the low dud rate of the cluster munitions the U.S. is sending to Ukraine. Purportedly 2.5% or fewer of these munitions fail to detonate as intended. They have contrasted this to the Russian military utilizing munitions with a dud rate they claim is as high as 30 to 40%. However, the previous reports from the Pentagon state that some submunitions in U.S. cluster bombs have a failure rate of 14% or greater.

Even if we take for granted the lower of the reported dud rates, it is unclear what this is supposed to demonstrate, morally speaking. Again, this dovetails with the previous point about the Russian military’s use of cluster weapons. Some of these munitions will undoubtedly fail. Thus, U.S. provided cluster munitions may still kill innocents. At best, this line of thought shows that the use of U.S. provided cluster munitions is more likely to be proportionate than the Russian use, given the lesser risk to civilians. But it is possible that both would be unjustified.

A more plausible defense of sending cluster munitions to Ukraine stems from the notion that they are necessary. President Biden has argued that the munitions are currently needed for a “transitionary period” so Ukraine’s military can keep up pressure while conventional munitions are restocked. Secretary Blinken also claimed that Ukraine would be defenseless without these additional munitions.

I lack the expertise to comment directly on the military necessity of using these weapons. So, in this sense, my analysis here is limited. Perhaps Ukrainian armed forces could hold the line until restocked with conventional munitions. Alternatively, perhaps this would give the Russian forces more time to dig in their defenses. This could make any Ukranian counter-offensive more difficult and deadly. More troublingly, it could help the Russian military regain previously lost ground in Ukraine.

Regardless, this line of argument seems suspect in that it appears self-undermining. Even proponents of sending cluster munitions to Ukraine want their use limited. Specifically, they should be used only until conventional weapon stockpiles can be replenished. This, ultimately, suggests skepticism that cluster munitions are morally justified. If they were, then it would indeed be quite odd that Ukrainian forces should only temporarily utilize them.

Of course, one might argue that even questioning whether the U.S. ought to send these munitions misses the point. The people of Ukraine are fighting a war against an unjust aggressor and defending their sovereignty. In the face of this existential threat to a democracy posed by an authoritarian regime, perhaps the least we can do is arm them with whatever munitions they request, within reason of course.

In the Republic, when discussing the nature of justice with Cephalus, Socrates asks his interlocutor to consider the following scenario: Suppose you borrowed a sword from a friend. Later your friend, now in a crazed state, asks you to return the sword. Both agree that even if justice requires paying one’s debts, surely justice would require withholding the sword if innocent lives are at risk. The consequences of what happens after you give your friend the sword, or in this case, the bombs, affect the morality of your act as well. The supplier does not have moral carte blanche.

Ultimately, whether supplying cluster munitions to Ukraine is justified turns on what these munitions will accomplish – are they necessary to achieve some substantive good that is worth the risk to civilian lives? If there is some less risky alternative with a reasonable chance of achieving the same goals, then it appears that alternatively is morally preferable. Further, even if cluster munitions are required to achieve some current objective, there must be an honest examination of whether those gains are worth the loss of civilian lives. Thus far, the arguments offered by the Biden administration speak minimally to these points.

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Real Life Terminators: The Inevitable Rise of Autonomous Weapons

image of predator drones in formation

Slaughterbots, a YouTube video by the Future of Life Institute, has racked up nearly three and a half million views for its dystopic nightmare where automated killing machines use facial recognition to track down and murder dissident students. Meanwhile, New Zealand and Austria have called for a ban on autonomous weapons, citing ethical and equity concerns, while a group of parliamentarians from thirty countries have also advocated for a treaty banning the development and use of so-called “killer-robots.” In the U.S., however, a bipartisan committee found that a ban on autonomous weapons “is not currently in the interest of U.S. or international security.”

Despite the sci-fi futurism of slaughterbots, autonomous weapons are not far off. Loitering munitions, which can hover over an area before self-selecting and destroying a target (and themselves), have proliferated since the first reports of their use by Turkish-backed forces in Libya last year. They were used on both sides of the conflict between Armenia and Azerbaijan, while U.S.-made switchblade and Russian Zala KYB kamikaze drones have recently been employed in Ukraine. China has even revealed a ship which can not only operate and navigate autonomously, but deploy drones of its own (although the ship is, mercifully, unarmed).

Proponents of autonomous weapons hope that they will reduce casualties overall, as they replace front-line soldiers on the battlefield.

As well as getting humans out of harm’s way, autonomous weapons might be more precise than their human counterparts, reducing collateral damage and risk to civilians.

A survey of Australian Defence Force officers found that the possibility of risk reduction was a significant factor in troops’ attitudes to autonomous weapons, although many retained strong misgivings about operating alongside them. Yet detractors of autonomous weapons, like the group Stop Killer Robots, worry about the ethics of turning life-or-death decisions over to machines. Apart from the dehumanizing nature of the whole endeavor, there are concerns about a lack of accountability and the potential for algorithms to entrench discrimination – with deadly results.

If autonomous weapons can reduce casualties, the concerns over dehumanization and algorithmic discrimination might fade away. What could be a better affirmation of humanity than saving human lives? At this stage, however, data on precision is hard to come by. And there is little reason to think that truly autonomous weapons will be more precise than ‘human-in-the-loop’ systems, which require a flesh-and-blood human to sign off on any aggressive action (although arguments for removing the human from the loop do exist).

There is also the risk that the development of autonomous weapons will lower the barrier of entry to war: if we only have to worry about losing machines, and not people, we might lose sight of the true horrors of armed conflict.

So should we trust robots with life-or-death decisions? Peter Maurer, President of the International Committee of the Red Cross, worries that abrogating responsibility for killing – even in the heat of battle – will decrease the value of human life. Moreover, the outsourcing of such significant decisions might lead to an accountability gap, where we are left with no recourse when things go wrong. We can hold soldiers to account for killing innocent civilians, but how can we hold a robot to account – especially one which destroys itself on impact?

Technological ethicist Steven Umbrello dismisses the accountability gap, arguing that autonomous weapons are no more troubling than traditional ones. By focusing on the broader system, accountability can be conferred upon decisionmakers in the military chain of command and the designers and engineers of the weapons themselves. There is never a case where the robot is solely at fault: if something goes wrong, we will still be able to find out who is accountable. This response can also apply to the dehumanization problem: it isn’t truly robots who are making life or death decisions, but the people who create and deploy them.

The issue with this approach is that knowing who is accountable isn’t the only factor in accountability: it will, undoubtedly, be far harder to hold those responsible to account.

They won’t be soldiers on the battlefield, but programmers in offices and on campuses thousands of kilometers away. So although the accountability gap may not be an insurmountable philosophical problem, it will still be a difficult practical one.

Although currently confined to the battlefield, we also ought to consider the inevitable spread of autonomous weapons into the domestic sphere. As of last year, over 15 billion dollars in surplus military technology had found its way into the hands of American police. There are already concerns that the proliferation of autonomous systems in southeast Asia could lead to increases in “repression and internal surveillance.” And Human Rights Watch worries that “Fully autonomous weapons would lack human qualities that help law enforcement officials assess the seriousness of a threat and the need for a response.”

But how widespread are these ‘human qualities’ in humans? Police kill over a thousand people each year in the U.S. Robots might be worse – but they could be better. They are unlikely to reflect the fear, short tempers, poor self-control, or lack of training of their human counterparts.

Indeed, an optimist might hope that autonomous systems can increase the effectiveness of policing while reducing danger to both police and civilians.

There is a catch, however: not even AI is free of bias. Studies have found racial bias in algorithms used in risk assessments and facial recognition, and a Microsoft chatbot had to be shut down after it started tweeting offensive statements. Autonomous weapons with biases against particular ethnicities, genders, or societal groups would be a truly frightening prospect.

Finally, we can return to science fiction. What if one of our favorite space-traveling billionaires decides that a private human army isn’t enough, and they’d rather a private robot army? In 2017, a group of billionaires, AI researchers, and academics – including Elon Musk – signed an open letter warning about the dangers of autonomous weapons. That warning wasn’t heeded, and development has continued unabated. With the widespread military adoption of autonomous weapons already occurring, it is only a matter of time before they wind up in private hands. If dehumanization and algorithmic discrimination are serious concerns, then we’re running out of time to address them.

 

Thanks to my friend CAPT Andrew Pham for his input.

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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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Can Assassination Ever Be the Right Thing to Do?

blurred photo of man aiming rifle

On March 10th, Facebook modified its free speech policy to allow for some calls to violence directed against Russian President Vladimir Putin.

More strikingly, a week earlier, Senator Lindsey Graham explicitly called for the assassination of President Putin.

Politically, it is ill-advised to blithely call for an assassination in the middle of a tense diplomatic situation, and Senator Graham’s actions were criticized by politicians on both sides of the aisle.

And yet one cannot help but feel the emotional impact of a Clint Eastwood-esque narrative in which all one has to do is kill some bad guy and geopolitical problems go away. Senator Graham called on the Russian people rather than the CIA, but it nonetheless raises the unsettling question: is there a (moral) place for assassination in international politics?

The question is not as far from contemporary practice as it seems. Democratic nations like Israel have utilized political assassination. Ostensibly the United States has formally banned political assassination since the signing of Executive Order 11905 in 1976, yet it makes frequent use of “targeted killing” in its international policy, usually of actors designated as terrorists, but also of Iranian General Soleimani. The straightforward reply is that these actions are unethical, but the morality of assassination is not as straightforward as one would hope and is deeply revealing about international ethics.

The intuitive ethical appeal of killing political leadership is that the harm is, in theory, localized. It has not gone unnoticed that those who declare war rarely fight in them, and the harms of war (like the harms of sanctions), tend to refract over the most vulnerable members of society. Assassinations, by contrast, suggest the possibility of getting at those responsible and few others. Defenders of ethical assassination – like political philosophers Andrew Altman and Christopher Wellman and Eamon Aloyo and military strategist Lieutenant Colonel Ralph Peters – invariably allude to the possibility of lesser and more targeted harms.

In their discussion of political assassination, Altman and Wellman, write “once one agrees that armed intervention is sometimes admissible, it becomes very difficult to argue consistently that assassination is always morally impermissible.” The idea here is a parity of reasoning argument. If we think a political leader is so reprehensible as to justify the brutality of armed intervention, then why not assassination? Is assassination somehow morally worse than war? For that matter, is assassination worse than oppressive sanctions?

When pushed for reasons, it becomes difficult to draw these boundaries in a principled way.

Before embarking on this discussion, it needs to be emphasized that the argument that claims “IF armed intervention is justified, THEN so is assassination” must clear an exceedingly high bar. It is perfectly legitimate to question whether armed interventions are ever ethical, especially unilateral interventions. In their account, Altman and Wellman stress that such decisions would need to be made by the international community rather than single actors, and still they worry, rightly, whether such decisions would be subject to abuse. As in the case of the assassination of General Suleimani by the United States, it is all too easy to imagine international assassinations as a mere cynical extension of national interest. Hypothetically, assassination could be justified even in cases where armed interventions are not justified, but that would require different and stronger arguments than parity of reason.

The question that follows then is: Is there anything specifically morally abhorrent about assassination that does not apply to armed intervention more generally?

One strategy to clarify the specific problem with assassination is by appeal to international law. The landmark international treaty on the rules of war, the Hague convention of 1899, declared it “especially prohibited” to “kill or wound treacherously individuals belonging to the hostile nation or army.” This sentiment against assassination has been reflected in later law like the Geneva Convention treaty of 1977. These laws concern assassination in war, but presumably assassination would not be outlawed during war time but permissible during peace time. The limitation of this response is that it grounds an ostensible ethical difference in a merely legal one, which can be changed with the stroke of a pen.

A slightly different spin is that a prohibition on assassination is needed to constitute effective international government and law in the first place – that absent this basic decency any international order becomes a nihilistic race to the bottom. As the blowback to Senator Graham’s comments shows, even talk of assassination is corrosive to serious international politics. This line of argument is more compelling, but for full strength it assumes that potential targets are (at least partially) participating in international governance, which may not always be the case. Presumably an international order would not be threatened by actions directed at those fully outside it, as long as there was internal agreement.

A second category of response is that assassination is wrong because it is the ethically wrong way to do war. The military ethics tradition of just war theory (if taken as more than an oxymoron) concerns itself with both justice in the declaration of war and right conduct in war. Right conduct is classically characterized by not targeting, and minimizing collateral damage to, civilians. This concern is reflected in prohibitions for weapons incredible in their destructive scope, like chemical or biological agents, and/or indiscriminate in their targeting, like anti-personnel landmines. However, the intuitive argument for assassination is precisely that it (in theory) minimizes collateral damage and civilian casualties, so by the standards of just war theory assassination appears more moral.

An alternative focus is the “treachery” alluded to in the Hague Convention. Modern understandings and law regarding just war are rooted in older discussions of chivalry and honor. From this perspective, the differentiating wrongness of assassination is that it is uniquely treacherous and dishonorable. Assassinations often involve subterfuge and target someone other than a soldier on a battlefield. However, the same concerns would apply to other common military tactics such as drone strikes and night raids. Moreover, if the assumption about the more limited harms of assassination is correct, forbidding assassination on the grounds of its treacherousness places the “honor” of leadership above the lives of soldiers and civilians.

The final way to characterize the wrongness of assassination is not by appeal to principle, but to challenge its claims to minimizing harms. High-profile political killings are as often the start of atrocities as the end of them, igniting retaliatory violence or wars for succession. In one of the most extensive historical investigations of political assassination to date, historian Franklin Ford concluded “[political assassination’s] demonstrable tendency has nearly always been to besmirch the perpetrator’s credentials, while undermining his chances of any lasting political success.” Similarly, another evidence-based analysis found high levels of instability and violence after successful assassination for governments without well-ordered succession – and assassinations of course do not always succeed, with failed assassination coming with their own consequences.

Even in cases of stable succession there is still no guarantee that the assassination will lead to positive change. This is the problem with the “bad guy” narrative. No matter how morally reprehensible, political leaders do not simply carry their country’s domestic and international problems around with them, to be neatly cleaned up after they fall. By focusing on singular villains we can neglect to appreciate the context behind political actions and the larger structures that maintain and exert political power. Nonetheless, especially in more dictatorial regimes, political leaders do have decision-making powers. The challenge however is to get political decision-makers to decide differently, not simply to eliminate them and let politics play out as it may.

Assassination then appears at the very least no more ethical than armed intervention, and because of its deleterious effects on international legitimacy, likely worse. It is not good ethics and it is not good politics. Nonetheless, advocates of assassination are right that there is something monstrous in the way conflicts between governments are settled via the lives of their people. As Lieutenant Colonel Peterson put it, “national behavior [of states] reminds me of those feudal squabbles in which minor nobles dueled by killing and raping each other’s serfs and burning offending villages.” Assassination, although itself impermissible, suggests an alternative vision for international ethics – thinking small. In a world of sanctions and cyberattacks, why can we not tailor these to target leadership and other influential actors more specifically? Russia is a test case, with sanctions starting to directly target oligarchs and legislators. However, not just in Russia, but everywhere, how would political decisions or actions change if every politician needed to worry about being embroiled in the conflicts they helped to create?

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Malum in Se: The Use of Tear Gas by Police

two police officers dressed in riot gear holding smoke grenade guns

Whenever police use tear gas against protestors and rioters, someone invariably asks, “Why, if tear gas is banned for use in war, is it allowed for use in law enforcement?” Ultimately, the justification appears to be, “Because there aren’t any better options.” However this practical excuse is undercut by some of the fundamental considerations of Just War Theory, which underpins international law governing warfare. 

In the nationwide protests against police brutality and systemic racism sparked by the killing of George Floyd by former Minneapolis police officer Derek Chauvin, tear gas has been used by the police departments of numerous US cities, including Atlanta, Minneapolis, Philadelphia, and Washington, D.C. Tear gas is a name that refers to a variety of different chemicals, including pepper spray. All tear gas compounds act by rapidly and severely irritating people’s eyes, skin, nose, mouth, throat, and lungs. This causes people’s eyes to swell and water (hence the name “tear gas” and “lachrymator agent”) and leads to difficulty breathing. Lachrymator agents are one among many “less than lethal” weapons used in riot control, alongside rubber bullets, beanbag rounds, flash-bangs, and many others. If tear gas is non-lethal, why is it forbidden for use in warfare?

Weapons that are banned for use in warfare by international law typically have one of more features which make them mala in se (i.e., evil in themselves). Means which are mala in se are morally unacceptable for use in warfare according to Just War Theory provisions concerning jus in bello, which refers to rules governing morally appropriate conduct during the course of war. What makes a weapon malum in se? Relating to tear gas, one criterion sticks out clearly. Any weapon the effects of which cannot be controlled is malum in se. Gases are inherently not controllable because to where they drift is determined by wind speed and direction, rather than user intention. Hence police using tear gas on a group of rioters in a residential area, or a non-residential area upwind from a residential area, will likely end up affecting people nearby, and in completely different areas who are complying with the law. In the context of war using weapons that fail to discriminate, or using weapons in a manner that fails to discriminate, between combatants and non-combatants is illegal. Why then is it acceptable for police to use weapons that fail to discriminate between law-breakers and law-abiders? 

Another criterion for determining whether a weapon is malum in se is its proportionality for achieving a legitimate goal. In Just War Theory, a war that has been justly entered into (jus ad bellum) allows those on the just side to use only the minimum necessary force to achieve victory by incapacitating the enemy (who is, if the war has been entered into justly, unjust by definition). Weapons and munitions that cause excessive harm to enemy combatants are prohibited in Just War Theory (and correspondingly outlawed by international accords). For example napalm and white phosphorous are both banned because they cause tremendous pain to combatants and maim them, rather than incapacitating or quickly killing them. Being exceedingly charitable to police, the use of tear gas can be seen as a proportional measure. Police, who are often outnumbered by rioters, need a method to promptly subdue rioters and restore peace without resorting to lethal means. If lethal force is the only viable alternative to weapons like tear gas, then it appears that the use of tear gas may be justified (ignoring that tear gas is malum in se because of its inherent indiscriminateness). 

While tear gas is “less than lethal,” both it and the delivery system for it can cause long-term harm to people. Even people with no underlying respiratory conditions can, with extensive exposure, suffer chronic respiratory issues. Likewise extensive exposure can lead to blindness. It is an indiscriminate chemical agent that has been banned for use in warfare. Under what circumstances, if any at all, could it be acceptable to use it? If we can imagine a group of rioters recklessly or intentionally committing serious crimes, but not doing so in a place from which the tear gas is liable to spread and affect innocent citizens, then we would have found an acceptable situation. Is there any such situation? Prison riots come close to the mark. Indeed, this is one of the situations in which the US Military reserves the right to use tear gas and in which the international laws governing chemical weapons allow militaries to deploy tear gas. However the use of tear gas by police on peaceful protestors or even on rioters in close proximity to peaceful protestors or densely populated urban areas is clearly unjust. The inherently indiscriminate nature of gaseous chemical agents makes them an evil in themselves.

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Pope Francis, Edward Gallagher, and Just War Theory

photograph of armed soldiers in file

In his remarks during a trip to Japan, Pope Francis denounced not only the use, but also the mere possession, of nuclear weapons as morally unacceptable. While this has been Pope Francis’ position throughout his tenure as Pope, it marks a change in the Vatican’s official position toward nuclear weapons from the era of Pope John Paul II, at which time the church merely denounced the actual use of nuclear weapons. Neither of these comments are motivated by a general principle of pacifism on the part of the Catholic Church, which both currently and historically has supported the existence and use of military force. The contemporary Church recognizes war as legitimate only in the context of national self-defense.

Relatedly significant controversy has attended President Donald Trump’s meddling in the case of Navy SEAL Edward Gallagher, who was tried and acquitted of war crimes. The idea of a war crime can itself seem perplexing as to many it is intuitive that the point of war is simply to win quickly and by whatever means necessary. How do nations like the United States, which has actively pursued military means of executing its international agenda, square their activities with idea of a war crime? Are institutions like the United States and the Catholic Church contradicting themselves, or is there actual principle at work?

A good way to understand this is to look into the specific provisions of so-called Just War Theory, the roots of which are in the work of famed (and Catholic) philosopher Thomas Aquinas in his Summa Theologicae. Far from pacifism, Just War Theory advocates that there is a way to enter into, conduct, and conclude wars which is not merely morally excusable but wholly justified. Nor is this sort of thinking limited to the Catholic tradition. In the Muslim tradition, the concept of jihad is one which prescribes with whom it is morally acceptable to go to war and how it is permissible to prosecute such a war. Similar sentiments can also be found in the writings of the Confucian and Mohist schools of philosophy in Ancient China as well as in Ancient Roman concepts of the laws that govern conduct among nations.

For the sake of simplicity and brevity, let’s stick with Just War Theory. A ban on the use of nuclear weapons would come under the heading of jus in bello, the part of Just War Theory that deals with what counts as prosecuting war in a morally justified fashion. Accounts of the aftermath of the use of nuclear weapons by the United States against Japan in 1945 are harrowing. Those people who survived the initial explosion suffered from extensive and horrible burns as well as a lifetime of health problems due to exposure to intense levels of radiation. These aspects inefficiently achieve the licit goals of military action as allowed by Just War Theory, namely to incapacitate a wrongly aggressing force without excessive damage to civilians and non-military infrastructure. Further, nuclear weapons in general create the possibility of nuclear fallout, which is the transmission of radioactive material throughout the atmosphere by weather patterns. Importantly the spread of nuclear fallout is not in the direct control of those who deploy nuclear weapons in the first instance. Hence the area and number of people affected is indiscriminate, with no clear way of controlling collateral damage.

Both of these features of nuclear weaponry make them a means of conducting war that is arguably male in se, in the terms of Just War Theory. This means that it is a method that is inherently bad, regardless of who uses it and how. Examples of methods that are treated as mala in se without controversy are slavery, pillaging and raping, group punishment as well as chemical and biological weapons (e.g., mustard gas and weaponized infectious agents). Nuclear weapons are not banned, but the similarity of the effects that they have to chemical and biological agents has led many to advocate for disarmament and an international ban on the possession, use, and development of nuclear weapons.

Not only are certain methods of killing and incapacitating enemies and civilians forbidden in Just War Theory, so is certain treatment of prisoners of war. The war crimes accusations against Edward Gallagher concerned the murder of an Islamic State prisoner of war. In general, prisoners of war (and otherwise incapacitated combatants), are not allowed to be killed, tortured, or humiliated. Unlike criminal prisoners, prisoners of war are not being held as a means of punishment for their actions. Even where the captured military personnel are responsible for actions considered international crimes, the ground personnel of the opposing military are not considered legitimately empowered to execute punishment. Here another aspect of Just War Theory enters the picture, jus post bellum, which concerns appropriate behavior upon the conclusion of war. Any prosecution for war crimes must be done by with respect for due process, including full court proceedings, within a court with the appropriate jurisdiction.

Just War Theory attempts to carve out a middle path between two monolithic alternatives. On the one hand there is pacifism, which argues that all violent, military action is morally unacceptable. On the other hand there is so-called realism about war, which argues that war is not immoral but beyond morality. However every nation belonging to any international political or governing body (at least in theory) subjects itself to rules of warfare meant to limit what are seen as moral excesses in the conduct of an otherwise (possibly) justifiable enterprise. The concept of a war crime in general, and the Catholic Church’s evolving position on warfare in particular, both manifest attempts to stay between the twin implausibilities of pacifism and realism concerning war.

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If North Korea Launches a Nuclear Attack, How Should the U.S. Respond?

A photo of the North Korean-South Korean border

North Korea’s regime has taken a bolder step in its confrontation with the United States: it has threatened to launch an attack against Guam, a US territory in the Pacific. Then, it walked it back. But, we have seen this kind of behavior in Kim Jong Un many times, so we may foresee that, sooner or later, he will again threaten to attack Hawaii, Guam, South Korea, or any other target within North Korea’s range. If such an attack takes place, and it is a nuclear attack, how should the U.S. ethically respond?

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Just War Theory and the Aims of Trump’s Airstrikes

The guiding concern of just war theory is that it is wrong to harm people, therefore it is wrong to harm people en masse, as we do in war. Thus, just war theory stems from the observation that aggression of all kinds requires justification, and the theory attempts to lay out the justification for acts of war. War is aggressive, and it harms and kills individuals as well as damages nations, and therefore we should take seriously the moral weight of the obligations to avoid it. The two principle realms that just war theory addresses are jus ad bellum (justified principles for entering war) and jus in bello (justified principles of conduct within war).

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