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There are some cases in which it seems impermissible to defensively harm or kill a number of persons each of whom is liable to be harmed or killed. Suppose that in a war against ISIS in Syria in order to save the life of one trapped soldier, the soldier himself or his colleague has to kill one thousand culpable aggressors. It seems that the number of aggressors who must be killed or harmed to save the life of our soldier can make a difference to the permissibility of defensive action. According to traditional Just War theory killing of liable combatants can never be disproportionate and so there would be no limit to the number of culpable aggressors one permits to kill to save the life of a soldier whom will be killed by the aggressors otherwise. David Rodin in "The Lesser Evil Obligation", argues that it would definitely be impermissible to kill, for example one million culpable and liable aggressors to defend one innocent child (p. 35). "When the number of aggressors in sufficiently large, the number of even fully culpable aggressors who must be killed can be relevant to the all-considered permissibility of defensive action" (p.35). He justifies his intuition by appealing to the lesser evil obligation theory, according to which a right bearer has an all-things-considered obligation not to exercise her own rights. In the above-mentioned example the right of the soldier to kill all thousand culpable combatants has not been expunged or dismissed or forfeited but according to the lesser evil obligation that right has been subsumed by sufficient independent morally outweighing considerations. Killing so many aggressors would "inflict considerable harm on the very large number of persons who love and depend on them. When this incidental harm is sufficiently great, it plausibly outweighs the liberty right of a putative defender to kill all the aggressors" (p.36).
Contra Rodin's consequentialist approach, McMahan argues that beneficence cannot override deontic concept of liability. According to him there is a liability justification for killing each of the thousand culpable killers, in the above-mentioned example. By analyzing the concept of liability he tries to show that effectiveness, narrow proportionality (proportionality in harms to those who are liable to some degree of harm), and necessity are internal circumstantial conditions of liability rather than external conditions of permissibility of action (p.17). Through this nuanced definition of liability which helps him to embed different concepts proportionality in the aggregate manner, he tries to distinguish between the liability of culpable aggressor and of responsible killer (a fast driver for example) who only through sheer chance now is threatening the life of an innocent bystander. To define the liability we need to look not only at the responsibility of the agent but also to the other internal parameters like effectiveness and narrow proportionality. So Mc Mahan thinks that even it is permissible to kill one responsible killer in a fast driver case, as proportionality in the aggregate suggests, if effectiveness and narrow proportionality are circumstantial and internal conditions of liability rather that external conditions of permissibility, none of the thousand culpable killers is liable to be killed (p.24). One hardly can avoid the objection of adhocness when reflecting on McMahan's maneuver in order to explain our intuition that the number of killed aggressors matters. What is exactly the difference his sophisticated account of proportionality in the aggregate in considering liability justification and simple account of lesser evil obligation which Rodin has supported? Both of them can handle the number of killers problem as well as the intuition that permissibility is not a linear function of liability, however, McMahan's account seems not successful in explaining how could effectiveness as a utilitarian concept can be reconciled with justificatory priority of liability.
McMahan thinks that Rodin's account of lesser evil obligation cannot distinguish between liability of minimally responsible and culpable killers, since his account is consistent with harming an innocent person and leaving free the culpable aggressors. In response Rodin suggests the distinction between the liability to be harmed and the impersonal badness of harming. According to this distinction, liability is not the mere consideration relevant to the weighing of harm. So "dismissed responsibility may mitigate impersonal badness, without necessary eliminating liability to defensive harm" (p.39). Anyway, Rodin-McMahan debate in the two first chapters of the book provides a fresh and thought provoking entrance.
Larry Mayin his seminal paper titled 'Human Rights, Proportionality, and the Lives of Soldiers' insists on the important impact which taking human rights law seriously will have on the current debate in Just War theory. International human rights law in contrast to international humanitarian law does not allow forfeiting the rights of life, liberty and security of persons. "In times of emergency that the very essence of the State is jeopardized, there can be derogation of some of the rights guaranteed by the Convention, although not the right to life" (p.47-8). This view towards the life of persons should be expanded not only to the lives of noncombatant civilians but also to the lives of even enemy soldiers in any supposed just war. If we take human rights perspective more seriously even the rights of enemy soldiers cannot be dismissed and their lives should be calculated in proportionality assessments as well (p.59). May argues that both necessity and proportionality constraints have to be met in order for the war participants to be justified in attacking soldiers with lethal force. Despite the fact that May's proposal for intruding human rights concerns into humanitarian law of war is attention worthy it seems that his view leads us to accept a sort of pacifism (Contingent pacifism), a view acceptance of which seems difficult for people who like us are currently under threat of ISIS militants.
Contra May whose view leads to contingent pacifism Richard Arneson opposed pacifism as a deeply troubling view which may bring about "catastrophic levels of human rights violations" in the real-world wars (p.69). However for one who like McMahan tries to proportionate the liability to harm with responsibility and does not accept contingent pacifism, it would be difficult to escape from responsibility dilemma which demonstrates that either the threshold of responsibility is so high that neither combatants nor non-combatants are responsible agents and so we have to accept pacifism, or, the standard threshold of responsibility ascription is so low that we could not even distinguish between liability of combatants to be killed and somehow war-supporters responsible non-combatants. Dealing with this sort of dilemma is the challenge of Arneson's paper. He accepts that both combatants and non-combatants can be permissible object of harmful attack. Since noncombatants can fail to fulfill their moral duties and responsibilities based on which they may become morally culpable and liable to harm (p.72). However it seems that would have dangerous consequences. Arneson claims that it would be morally permissible for guerilla fighters who are engaging in a just war against a tyranny to take civilians as their shelter (p.73). It means that if our aim is good, we ought to reach that aim without caring the way or the means to that aim. This view may ultimately result in justifying terrorism. We all know that not all terrorist groups aim at wrong goals, what is absolutely bad about them is their means toward their goal.
So I think that no good goal is able to sufficiently justify any means or even any necessary means toward it. And we ought to check the permissibility of choosing our means as well. Now consider a case in which one who is under duress, in order to save her own life is obliged to kill 70 innocent people. Victor Tadros reflects on this real case and tries to show that duress can provide a sort of justifying defense to a charge of murdering for the mentioned killer. The idea that duress sometimes justifies protanto wrong doing faces with at least three kinds of objections. First, a person who kills under duress would treat her victim as a means to save his own or others lives. Second, the fact that a person is already under lethal attack cannot provide a reason for others to treat him as a means. So the mentioned killer cannot justify his action by appealing to the reason that 'if I haven't killed him they would definitely kill me and him'. Third, treating people as a means is bad not only in cases in which the goal is egoistic or opportunistic (that reaches a good effect), but also in cases where the goal is impartial or eliminative (that diminishes some bad effects). All of these objections have been challenged by Tadros (pp.101-14). Nevertheless, despite Tadros endeavors, it seems to me that duress cannot have a justifying role for wrong doing and it can only provide a sort of excuse for wrong doing. In addition to that, it seems that Tadros' account can be stated more easily Through Rodin's account of lesser evil justification, for Tadros uses the same consequentialist parameters for permission of an evil action as Rodin has more clearly done.
While McMahan's central focus was on recent individualist Just War theorizing, Tanguay-Renaud draws our attention to the liability of states as corporate group agents in wars. His main question is that how could corporate liability intelligibly be ascribed to states and "could such corporate liability ever make a difference in an overall argument about the permissibility of attacking a state?" (117.8). With an adequate normative framework or constitution which ensures the group intentional reasonable judgments and activities, we can imagine a irreducible group agency. So we have to distinguish between personal and corporate levels in our moral judgments of responsibility and liability. He argues that states as group agents can have rights and responsibility based on how states relates to individuals' rights. "A state may, for example, have no sovereignty-based complaint against various types of external interferences aimed at thwarting its violations of its individual members' human rights" (pp.26-7). I agree with him, however, we should be completely aware of the bad consequences may external (even justified) attacks have upon individuals, for example look at what have happened in Lybia after tackling Ghazafi. Tanguay-Renaud considers this latter point and says that only in cases where individuals are not at risk of being significantly harmed by the attack on the state, state liability to attack can justify foreign intervention (p.136). We reach to dilemma here: if we accept Tanguay-Renaud argument that state liability is something over and above the liability of individuals then the rights of every individual person in wars against cruel states can be easily forgotten. Because the aim is overthrowing the bad government then the individuals will be sacrificed during these pro-liberty interventions (see what happened in Afghanistan and Iraq after US war). So in nondemocratic states foreign intervention may be so harmful to individuals. On the other hand the state can be supposed to be nothing but the aggregation of individuals only in certain level of democracy. In democratic states individuals have found a strong potential duty and responsibility to control and support the actions of their government. In such democracies the existence of feedback controlling procedures make most state's decisions so reasonable that hardly the state becomes liable to attack to be overthrown. So the concept of state liability to harm or attack seems inapplicable.
Andrew Altman in his paper 'Targeting Al Qaeda' criticizes US policy of targeted killings of Al Qaeda members throughout the middle east and the globe after 9/11 event. He tries to show that the law of armed conflict (LOAC) does provide neither legal nor ethical justifying reason for US forces combatants to be privileged in such an alleged war. In addition to LOAC, the killings would violate international human rights law, if US claims about the right to self-defense in these cases cannot be fully approved (p.154). He also questioned the supposed claim of immanency of the threads posed by Al Qaeda terrorists which necessitates the use of lethal forces in defense of the threat (p.159). I am agree with Altman that US post 9/11 war policies in Iraq and Afghanistan were not morally or legally justifiable however this paper relevance to or importance for the edited book on 'Ethics of War' is not clear for me.
Adel Ahmed Haque argues in favor of the claim that using weapons which are more likely to kill civilians than to kill combatants is morally impermissible and so using such weapons should be considered as unlawfully indiscriminate that according to the law of armed conflicts is prohibited (p.165). In order to show moral impermissibility of the use of weapons of mass destruction Haque appeals to necessity, proportionality, and intentionality criteria for liability to be Hamed. Nevertheless, it would be a proper question to ask what Haque's paper is going to add to the already existing literature on moral considerations about what makes it the case that an agent is all-things-considered justified in transgressing some persons rights, on which Rodin and McMahan have discussed throughly and philosophically. Haque refers to McMahan and Parfit's expectabilism (rule consequentialism) to justify his position (p.176). But, I think in this volume in which Rodin's paper subtly formalizes lesser evil justification and obligation Haque in his paper should consider his account more seriously.
In the well-known trolley problem, remember the scenario in which one pushes a Fat Man staying on the bridge in order to save the lives of five bystanders. Compare this with a case in which one causes a car to fail into the trails and thereby stop the trolley from moving toward five persons, despite the fact that the car driver is in the car. It seems intuitive judgment that in the Car the rescuer does not use the driver as a means, but in the Fat Man the man has been used as a means. Kai Draper denies this intuitive distinction and suggests that we commit distinct between these two typical cases. He continues that more discriminations could not provide any reasonable basis for the legal distinction between harming non-combatants directly and harming them indirectly. He then tries to establish his claim through several examples. Here I want to draw Draper's attention to the distinction Robert Audi has explicated subtly in his book titled Means, Ends, and Persons (OUP 2016). Audi here distinguishes between treating a person merely as a means, treating her solely as a means and treating her as a mere means. In Car the rescuer might tries her best to call the driver to come out of the car but unfortunately there was no time to warn the victim driver. In this case the rescuer use the driver solely as a means since the victim's life is important for the rescuer. Now consider the Car in which the rescuer doesn't pay attention to the life or wellbeing of the victim. In this case the victim is merely used as a means. In Fat Man however, the victim not only has been used merely as a means but also she has been used as a mere means. This is the most morally objectionable case, in comparison with the Car. Through this nuance distinctions I think Draper can sharpen his intuition (p.199), and so there would be no need to come across pragmatic compromise in order to reduce harms.
Mattias Iser in his thought provoking paper tries to develop the basis for a law concerning the justifiability of revolutionary violence. Contra Rodin and Norman who explicitly sees the revolutionary struggle for freedom as peripheral right which could not provide a reason for permissibility of violence, Iser argues that since the autonomy and freewill of agents is their basic constituent, their freedom and autonomous decision making has to be respectfully recognized (p.213). He claims that "all mentioned forms of sever inequality manifest disrespect that may potentially justify violence resistant as a last resort because persons simply do not have to endure living under such conditions" (p.220). Conditions under which second-class citizens are not permitted to shape and construct responsibly and freely the social norms of their communities, provide reason for resistance. And if such uncontrollable conditions become institutionalized and systematized in a governmental law the oppressed people are justified to resort lethal violence against such a bad state. Iser cleverly recognizes the paradoxical fact that revolutionary violence may lead to demonization of opponents of revolution. "As all revolutions show, the indignation that fuels them contains a strong retributive aspect" (p.223). So it can be inferred that overturning an unjust state is rarely a justified option. On the one hand the revolutionists try to reach justice and equality and o the other hand their indignations and retributive rages lead them to see their opponents as a strategic nuisance. If oppressed people have no way other than standing up against injustice, they should know that revolutions may undermine their goal. I enjoy reading Iser's paper and I recommend reading it to all who tries to protest in a revolutionary manner.
Seth Lazar in the first part of his paper tries to shed some lights on the terminologies already popular in the Just War theory debates and shows that categorizations like jus ad bellum, jus in bello, and jus ex bello have limited philosophical significance. He suggests that interplay between Combatant Ethics (which governs the morality of specific actions within the war) and Command Ethics (which governs the morality of war as a whole in a synchronic sense) provides more crucial and philosophically-rich distinction for the morality of war in the analytic debates. He adds that we ought to pay more attention to justifying reasons for and constraints on the actions and operations taken by combatants rather than ad bellum/in bello famous distinction (p.234).
In the second part, Lazar criticizes the silence of contemporary Just War theory on the important role of negotiations in jus in bello and jus ex bello. Negotiation in war time has its own constraints and norms, Lazar enumerates four of them: "good faith" between two sides of the conflict to reach peace, "safe quarter" for the participants during negotiations, "no new rights" expected to be emerged for one party by negotiations, and "compliance" to the reached agreements (pp.238-242). He concludes that instead of adding some Latin into Just War theory, we need to supplement our already existing theory with norms to govern negotiations that leads to wars' ending.
Peter Strawson thinks that our reactive attitudes like resentment, empathy, trust, and hope are constitutive of moral responsibility. When we see a man torturing a child we normally and immediately react to this state and as a responsible agent resist the event to be continued. Our immediate reaction perhaps does not depend on our other beliefs or intentions. One of he main reactive attitudes the construct our moral response to an event is our hope in ourselves and others to be well. Nancy Sherman in her paper focuses on inter personal and intra personal forward-looking hope to build up "healthy moral relationships within self and with others, after war" (p.245). The issue is important specially when we see that post traumatic stresses are vastly familiar among soldiers have come back home after war. Sherman suggests that our finely attuned and rational hope to ourselves and others can bootstrap our own wellbeing.
Despite her projects importance for creation a sense of meaning and purpose in after war therapy, I couldn't see any philosophical significant point in her paper. Her referring to Starwson's idea about the reactive attitudes as the constitutive of moral responsibility is irrelevant to the gist of her paper. Strawson's idea is about the nature of moral responsibility while Sherman focuses on psychological therapy of soldiers after war, through non normative, real and rational hope.
Saba Bazargan-Forward's and Samuel Rickless's edited book on The Ethics of War, is a readable anthology but it is not an authoritative one. The collected essays are not focused on a specific subject matter and it is really difficult for a reader to reconcile between so many divergent ideas. I highly recommend reading Rodin's paper (pp.28-45) in this volume to everyone who concerns the morality of war. Arneson's paper (pp. 67-93) on Responsibility Dilemma is also philosophically significant.
© 2017 Ebrahim Azadegan
Ebrahim Azadegan, Assistant Professor, Department of Philosophy of Science, Sharif University of Technology, Tehran, Iran