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The Moral Status of Combatants during Military Humanitarian Intervention

Published online by Cambridge University Press:  22 May 2012

ALEX LEVERINGHAUS
ALEX LEVERINGHAUS*
Affiliation:
Johann Wolfgang Goethe University, Frankfurt am Mainleveringhaus@em.uni-frankfurt.de
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Abstract

Recent debates in just war theory have been concerned with the status of combatants during war. Unfortunately, however, the debate has, up to now, focused on self-defensive wars. The present article changes the focus slightly by exploring the status of combatants during military humanitarian intervention (MHI). It begins by arguing that MHI poses a number of challenges to our thinking about the status of combatants. To solve these it draws on Jeff McMahan's theory of combatant liability. On this basis, the article contends that, first, combatants engaged in atrocities lack the same set of rights and liberties held by intervening combatants. Second, and more controversially, drawing on McMahan's theory as well as the notion of complicity, it suggests that the same applies to those combatants who do not perpetrate atrocities but are merely ordered to defend the target state against the intervening state.

Type
Debate
Information
Utilitas , Volume 24 , Issue 2 , June 2012 , pp. 237 - 258
Copyright
Copyright © Cambridge University Press 2012

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References

1 The following reflections apply to all combatants, regardless of whether they are soldiers. For a contemporary treatment of ‘illegal combatants’, see Kutz, C., ‘The Difference Uniforms Make’, Philosophy & Public Affairs 33 (2005), pp. 148–80CrossRefGoogle Scholar.

2 For some doubts about the claim that all combatants pose material threats, see Norman, R., Ethics, Killing and War (Cambridge, 1994)Google Scholar.

3 Abbreviated as JAB and JIB hereinafter, respectively. Principles of JAB include: just cause, proportionality, right intention, right authority, last resort and reasonable likelihood of success. Principles of JIB include: discrimination and proportionality of means. For Walzer's famous moral equality of soldiers, see Walzer, M., Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd edn. (New York, 2000), pp. 34–7Google Scholar.

4 For some of McMahan's most influential writings on the status of combatants, see Killing in War (Oxford, 2009); ‘On the Moral Equality of Combatants’, Journal of Political Philosophy 14 (2006), pp. 377–93; ‘The Ethics of Killing in War’, Ethics 114 (2004), pp. 693–733; ‘Innocence, Self-Defense and Killing in War’, Journal of Political Philosophy 2 (1994), pp. 193–221.

5 McMahan, it needs to be stressed, does not consider a just cause as a sufficient condition for the use of force. Typically JAB also requires that war must be proportionate. A war may still be unjust if, despite its just cause, it is not proportionate. For reasons of space, the article focuses on the just cause criterion only.

6 Brown, C., Sovereignty, Rights and Justice: International Political Theory Today (Cambridge, 2002), p. 108Google Scholar.

7 McMahan, Killing in War, pp. 32–4.

8 Walzer, Just and Unjust Wars, pp. 39–40.

9 McMahan, ‘The Ethics of Killing in War’.

10 For this and related worries, see Zohar, N., ‘Collective War and Individualistic Ethics: Against the Conscription of Self-Defence’, Political Theory 21 (1993), pp. 606–22CrossRefGoogle Scholar, and Thomson, J. J., ‘Self-Defense’, Philosophy & Public Affairs 20 (1991), pp. 283–310Google Scholar.

11 Walzer, Just and Unjust Wars, pp. 25–9.

12 McMahan, ‘On the Moral Equality of Combatants’.

13 See, McMahan, J., The Ethics of Killing: Problems at the Margins of Life (Oxford, 2002)CrossRefGoogle Scholar and ‘Self-Defense and the Problem of the Innocent Attacker’, Ethics 104 (1994), pp. 193–221. For a contemporary critique of McMahan's position on self-defence, see Lazar, S., ‘Responsibility, Risk and Killing in Self-Defense’, Ethics 119 (2009), pp. 699–728CrossRefGoogle Scholar.

14 It is not entirely true that MHI are strictly non-self-defensive wars. The justification of MHI may sometimes include considerations of self-defence. For the sake of convenience, my discussion assumes that considerations of self-defence play a secondary role in MHI. For a superb account of the role of self-defence in the actual justification of MHI, see Wheeler, N., Saving Strangers: Humanitarian Intervention and International Society (Oxford, 2000)Google Scholar.

15 Liberal political philosophers who defend MHI include: Brock, G., Global Justice: A Cosmopolitan Account (Oxford, 2009)CrossRefGoogle Scholar; Buchanan, A., ‘The Internal Legitimacy of Humanitarian Intervention’, Journal of Political Philosophy 7 (1999), pp. 71–87CrossRefGoogle Scholar; Moellendorf, D., Cosmopolitan Justice (Boulder, 2002)Google Scholar; Rawls, J., The Law of Peoples (Cambridge, Mass., 1999)Google Scholar; Teson, F., ‘The Liberal Case for Humanitarian Intervention’, Humanitarian Intervention: Ethical, Legal and Political Dilemmas, ed. Holzgrefe, J. L. and Keohane, R. O. (Cambridge, 2003), pp. 93–129CrossRefGoogle Scholar; Walzer, Just and Unjust Wars; Walzer, ‘Arguing for Humanitarian Intervention’, The New Killing Fields: Massacre and the Politics of Intervention, ed. N. Mills and K. Brunner (New York, 2002), pp. 19–35; Walzer, ‘The Politics of Rescue’, in M. Walzer, Arguing about War (New Haven, 2004), pp. 67–81.

16 This definition raises the issue of consent, which I cannot tackle here. For discussions of the notion of consent in theories of MHI, see Teson, ‘The Liberal Case for Humanitarian Intervention’ and McMahan, J., ‘Humanitarian Intervention, Consent, and Proportionality’, Ethics and Humanity: Themes from the Philosophy of Jonathan Glover, ed. Davis, N., Keshen, R. and McMahan, J. (Oxford, 2010), pp. 44–74CrossRefGoogle Scholar.

17 Walzer, Just and Unjust Wars, p. 39.

18 Claudia Card argues that Atrocity Crimes are paradigmatic of evil, see Card, C., The Atrocity Paradigm: A Secular Theory of Evil (Oxford, 2002)CrossRefGoogle Scholar. My thinking about Atrocity Crimes is heavily indebted to Card's atrocity paradigm.

19 An exception, of course, exists if the intervening state and its combatants adopted unjust methods. But I won't pursue this problem here.

20 Card suggests that those engaged in Atrocity Crimes are culpably responsible for their deeds, but later revises this judgement. Nevertheless, in what follows, I stress the centrality of moral culpability for the moral assessment of Atrocity Crimes. For the revised version of the atrocity paradigm, see Card, C., Confronting Evils: Terrorism, Torture and Genocide (Cambridge, 2010)CrossRefGoogle Scholar.

21 May, L., Crimes against Humanity: A Normative Account (Cambridge, 2005), pp. 181–4Google Scholar. For Walzer's views on this and related matters, see Just and Unjust Wars, ch. 19.

22 May, Crimes against Humanity, pp. 188–91.

23 See, Thornton, R., Asymmetric Warfare (Cambridge, 2007)Google Scholar.

24 See, Honig, J. W. and Both, N., Srebrenica: Record of a War Crime (Harmondsworth, 1996)Google Scholar.

25 On this point, see Welzer, H., Täter: Wie aus ganz normalen Menschen Massenmörder werden [Perpetrators: Why Ordinary People Become Mass Murderers] (Frankfurt, 2007)Google Scholar and Hinton, A., Why Did They Kill? Cambodia in the Shadow of Genocide (Berkeley, 2005)Google Scholar. For further social-psychological and sociological perspectives, see Weller, J., Becoming Evil: How Ordinary People Commit Genocide and Mass Killing, 2nd edn. (Oxford, 2007)Google Scholar; Mann, M., The Dark Side of Democracy: Explaining Ethnic Cleansing (Cambridge, 2005)Google Scholar. For two critical historical studies, see Goldhagen, D. J., Hitler's Willing Executioners (Lancaster, 1997)Google Scholar and Browning, C. R., Ordinary Men: Reserve Battalion 101 and the Final Solution in Poland (London, 1992)Google Scholar.

26 See, Browning, Ordinary Men.

27 Welzer, Täter.

28 For Card, certain harms are intolerable because they deprive their victims of the opportunity for a minimally decent life or a dignified death. Survivors of intolerable harms, Card notes, may never be able to fully recover from them. Card, Atrocity Paradigm, pp. 3–4.

29 McKinnon, C., ‘Crimes of War, Crimes of Peace’, On Human Rights: The Oxford Amnesty Lectures 1993, ed. Shute, S. and Hurely, S. (New York, 1993), pp. 84–109Google Scholar, at pp. 86, 90. Alex Hinton offers an anthropological account of the practice of cannibalism during the reign of the Khmer Rouge, see Hinton, Why Did They Kill?, pp. 34–5.

30 Margalit, A. and Motzkin, G., ‘The Uniqueness of the Holocaust’, Philosophy & Public Affairs 25 (1996), pp. 65–83CrossRefGoogle Scholar.

31 May, Crimes against Humanity, p. 193.

32 Rodin, D., War and Self-Defence (Oxford, 2002), p. 171CrossRefGoogle Scholar. For a critical discussion of duress, see Horder, J., Excusing Crime (Oxford, 2004)Google Scholar.

33 McMahan, The Ethics of Killing, pp. 403–4.

34 For McMahan's own treatment of child soldiers, see McMahan, Killing in War, pp. 198–202. For a critical view that suggests that child soldiers are not entirely passive, see Rosen, D. M., Armies of the Young: Child Soldiers in War and Terrorism (Camden, NJ, 2005)Google Scholar. For an account of various issues involving child soldiers, see Singer, P. W., Children at War (Berkeley, 2006)Google Scholar.

35 For two views that contend that the killing of NRAs is excusable, see Otsuka, M., ‘Killing the Innocent in Self-Defence’, Philosophy & Public Affairs 23 (1994), pp. 74–94CrossRefGoogle Scholar, and McMahan, ‘Self-Defense and the Problem of the Innocent Attacker’.

36 Nancy Davis raises this point, albeit in the discussion of abortion. Davis, N., ‘Abortion and Self-Defence’, Philosophy & Public Affairs 13 (1984), pp. 175–207Google Scholar. For McMahan's response to Davis, see The Ethics of Killing, pp. 411–18.

37 Michael Otsuka raises this point in his discussion of NRAs, see Otuska, ‘Killing the Innocent in Self-Defence’. For a critique of the claim that numbers count, see Taurek, J., ‘Should the Numbers Count?’, Philosophy & Public Affairs 6 (1977), pp. 293–316Google ScholarPubMed.

38 Simester, A. P. and Sullivan, G. R., Criminal Law: Theory and Doctrine, 2nd edn. (Oxford, 2003)Google Scholar; Ashworth, A., Principles of Criminal Law, 5th edn. (Oxford, 2006)Google Scholar; Kadish, S., ‘Complicity, Cause and Blame: A Study in the Interpretation of Doctrine’, California Law Review 73 (1985), pp. 323–410CrossRefGoogle Scholar.

39 For a critical approach to the provision of welfare goods during war, see Fabre, C., ‘Guns, Food and Liability to Attack’, Ethics 120 (2009), pp. 36–63CrossRefGoogle Scholar.

40 Ashworth, Principles of Criminal Law, pp. 434–5.

41 Ashworth, Principles of Criminal Law, p. 438.

42 Kutz, C., ‘The Collective Work of Citizenship’, Legal Theory 8 (2002), pp. 471–94CrossRefGoogle Scholar.

43 Hinton, Why Did They Kill?.

44 See, Pattison, J., Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford, 2010)CrossRefGoogle Scholar.

45 Fox, G., Humanitarian Occupation (Cambridge, 2008)CrossRefGoogle Scholar.

46 I would like to thank Cécile Fabre, Paul Kelly and Jeff McMahan for their comments on this article. The article was finished during my time as a post-doctoral fellow at the Centre for Advanced Studies ‘Justitia Amplificata’ at the Goethe University Frankfurt, Germany. I herewith acknowledge the funding I received from the Deutsche Forschungsgemeinschaft. I'd also like to thank all members of Justitia Amplificata, in particular Rainer Forst and Stefan Gosepath who co-direct the centre.