Sharing the costs of fighting justly

ABSTRACT

Combatants who attempt to obey the laws of war often have to take considerable risks in order to effectively discriminate between legitimate and illegitimate targets. Sometimes this task is made even more complicated by systemic factors which influence their ability to discriminate effectively without unduly risking their lives or the mission. If they fail to do so, civilians often pay the price. In this paper, I argue that to the extent that non-combatants benefit from the attempt to fight justly, and to the extent that wars in which combatants attempt to fight justly can be understood as a system of social cooperation which produces both burdens and benefits, non-combatants have a responsibility to shoulder their fair share of these burdens. Thus, if combatants (and by extension enemy non-combatants) are disproportionately burdened in a conflict, non-combatants ought to take on some costs, for instance in order to reduce the strain imposed on combatants by systemic factors such as the availability and distribution of resources.

KEYWORDS:

• Just war theory
• jus in bello
• collateral damage
• fair play obligations
• law of armed conflict (LOAC)

Acknowledgements

The author would like to thank audiences in Warwick, Belfast, Birmingham, Sheffield and the University of York Political Theory workshop, as well as Richard Child, Stephanie Collins, and James Pattison for their helpful comments on earlier drafts. Special thanks are reserved for the editor and two anonymous reviewers for this journal for their invaluable feedback.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. The approach to just war theory which is often called ‘revisionist’ suggests that although just combatants are permitted to fight, unjust combatants are not because by doing so they are contributing to their state’s illegitimate war. (Fabre, 2009; Frowe, 2014; McMahan, 2009; Rodin, 2002).

2. For an extensive discussion and defence of Walzer’s principle, see for instance (Lee, 2004).

3. In addition to Walzer (2006) and Lee (2004), see, among others, (Lazar, 2012; Luban, 2014; Schwenkenbecher, 2014).

4. See for instance (Robillard & Strawser, 2016).

5. This is not to say that authors such as Walzer think that the requirement to reduce foreseeable harm only applies to individual front-line combatants. I assume they do not – however this dimension has received relatively little attention.

6. I’m drawing here on Neta C. Crawford’s work (Crawford, 2007, 2013). For additional illustration, consider Alex Bellamy’s discussion (Bellamy, 2004) of how a favourable attitude among British military elites towards the targeting of non-combatants as a tactic fed into the decision to bomb German cities during the Second World War.

7. Of course, this is not meant to imply that these factors determine a military’s ability to reduce side effect harm, or that these are the only factors which affect a military’s ability to reduce side effect harm. However, I do, with Crawford, suspect that it is fair to say that at least sometimes, lack of training or functioning equipment are significant causes for combatants’ inability to (effectively) reduce foreseeable harm. In so far as these incidents tend to result in the deaths of or serious injury to innocent people, I think that this is a problem that should be addressed.

8. Note however that it is often not (perceived to be) in the interest of non-state actors fighting large, well-organised, state militaries to obey (all of) the war convention. Yet research suggests that the likelihood of the direct or indiscriminate targeting non-combatants being militarily effective is related to the strength of the adversary. When the adversary is strong, violating the discrimination requirement is not likely to work, whereas it might work if the adversary is weak and not able to offer protection to the targeted non-combatants. At least in this respect, then, it might still be the case that it is in the combatants’ best interest to obey the war convention even if in other areas, such as the requirement that combatants distinguish themselves clearly from non-combatants, they might benefit from breaking the convention. For research suggesting that indiscriminate attacks are ineffective against strong opponents, see Abrahms (2006); Horowitz & Reiter (2001); Kalyvas (2004). For an illustration of situations in which indiscriminate attacks are effective, see Lyall (2009).

9. I do not mean to imply here that combatants should not be held responsible if they make mistakes or errors of judgment, but merely that, as my discussion above highlights, we should recognise that they may not be solely responsible for the bad outcomes of their actions.

10. Of course, non-combatants also face the risk of being killed, but this would also be a cost in a non-rule governed war, so it is not specifically a cost of ensuring a war remains reasonably just.

11. It is sometimes argued that fair play obligations only apply in cases where the benefits have been voluntarily accepted (see e.g. Simmons (1979, pp. 101–142)). If this is the case, then since most citizens do not voluntarily accept goods such as those provided by the military, the fair play-argument breaks down. However, in response to this, authors such as Klosko argue that when the goods are sufficiently important, fair play obligations can arise regardless of whether the benefits have been actively accepted. This is the view I take here, at least regarding benefits which are presumptive, and would not be provided, or would not be provided as efficiently, without cooperation.

12. In a somewhat similar argument, Simon Caney (2015) argues that a farmer who has benefited from her state’s unjust (exploitative) system of barriers to trade in agricultural produce is not made worse off if farmers from states disadvantaged by these policies engage in illegal trade, thereby lowering her profit margin (Caney, 2015, p. 70). This is because the rich farmer is unjustly advantaged by her state’s policies which means that she has more than her fair share of resources because of this injustice.

13. Although some combatants do consent to take on additional risks in order to reduce the risk imposed on non-combatants, many combatants do not similarly consent, such as conscripts, or do not consent fully, for instance because they are young and ill-informed about the risks associated with a military career.

14. For the view that authorisation grounds collective responsibility, see Stilz (2011). For the view that endorsement grounds collective responsibility, see e.g. Pasternak (2013).

15. For a detailed criticism of Stilz which highlights this problem, see Jubb (2014).

16. As Delmas notes, ‘the fairness principle focuses on the current state of affairs, and identifies individuals’ responsibility based on their position within the scheme and their capacities to effect change, not on the responsibility that individuals bear for the harms of historical or structural injustice’ (Delmas, 2014, p. 475).

17. Christopher Finlay makes a similar point in defending the Natural Duty of Justice approach to political obligation against the charge that it does not meet the particularity requirement (Finlay, 2015, pp. 46–50).

18. It is worth remembering that one of the first attempts to legally regulate the conduct of war internationally was the 1868 St Petersburg declaration banning the use of exploding bullets due to the view that such ammunition ‘uselessly aggravate[s] the sufferings of disabled men, or render[s] their death inevitable’ and that the use of exploding bullets in combat was therefore to be considered ‘contrary to the laws of humanity’ (ICRC, n. d.). Indeed, most of the early international legal documents concerning war (such as the first Geneva Convention or the Hague Conventions) related to the protection of combatants.

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Sara Van Goozen

Sara van Goozen is an associate lecturer in Political Philosophy at the University of York. Her research focuses primarily on topics in contemporary just war theory, but also international political theory and global ethics. She is also interested in various other areas in contemporary political theory, such as the literatures on political obligation and sovereignty.