This article suggests that the best available normative framework for guiding conduct in war rests on categories that do not echo the terms of an individual rights-based morality, but acknowledge the impossibility of rendering warfare fully morally justified. Avoiding the undue moralization of conduct in war is an imperative for a normative framework that strives to actually give behavioral guidance to combatants, most of whom will inevitably be ignorant of the moral status of the individuals they encounter on the battlefield and will often be uncertain or mistaken about the justice of their own cause. We identify the requirement of military necessity, applied on the basis of what we refer to as the “St. Petersburg assumption”, as the main principle according to which a combatant should act, regardless of which side or in which battlefield encounter she finds herself. This pragmatic normative framework enjoys moral traction for three reasons: first, in the circumstances of war it protects human life to a certain extent; second, it makes no false claims about the moral justification of individual conduct in combat operations; and, third, it fulfills morally important functions of law. However, the criterion of military necessity interpreted on the basis of the St. Petersburg assumption does not directly replicate fundamental moral prescriptions about the preservation of individual rights.
Janina Dill is the Hedley Bull Fellow at the Department of Politics and International Relations, Oxford. She is a Junior Fellow of Merton College and an Associate Fellow of the Oxford Institute for Ethics, Law, and Armed Conflict. She holds a D.Phil. from the University of Oxford, an M.Phil. from the University of Cambridge, and a B.A. from the Technical University Dresden in Germany. Her research focuses on international law in war, specifically its philosophical foundations and normative scope. She is currently working on turning her thesis about the role of international law in U.S. air warfare into a book. email@example.com
Henry Shue is Senior Research Fellow at the Centre for International Studies and Senior Research Fellow Emeritus at Merton College, Oxford. Well known for his book Basic Rights (1980) and his research on the role of human rights in international affairs, he is currently concentrating on the conduct of war, especially the bombing of “dual-use” infrastructure, such as electricity-generating facilities, and on the international terms for mitigating climate change. Most recently, he is the author (with David Luban) of “Mental Torture: A Critique of Erasures in U.S. Law,” Georgetown Law Journal (2012). firstname.lastname@example.org
* We are grateful to Seth Lazar and Jeff McMahan for their sharp articulations of their doubts about this project and to Cheyney Ryan for believing in it when we had our own doubts, as well as to three anonymous reviewers for this journal and the other members of the Oxford War Workshop for additional comments. Remaining errors are, of course, the fault of the other joint author.