What are the laws that apply during a war? We discuss the jus in bello and the requirements of discrimination, proportionality and necessity. Just War Theory applied to the current conflict in the Ukraine.
This is the second part of a series on the ethics of war. Find the first part here: The Ukraine Conflict and the Ethics of War.
The rules in war (jus in bello)
We said last week that the theory of just war distinguishes three different kinds of moral problems:
- The ethics of entering war (jus ad bellum)
- The rules to be obeyed during war (jus in bello)
- The ethics of restoration and peace after a war (jus post bellum)
Today we are examining the second part, the ethical conduct during a war. There are, essentially, three requirements that must be fulfilled for an action in war to count as (relatively) ethical. One should emphasise the “relatively” part, because, for example, radical pacifists might claim that participating in a war, in whatever way, can never be a morally right act.
The three requirements are: discrimination, proportionality and necessity.
First, we must make sure that we target only combatants in a war and not non-combatants like children, old people, and civilians who are not taking part in hostilities.
Philosophically, it is an interesting question why we would make this distinction. If I say that it is not morally right to kill a civilian, but it is morally right to kill the same person if he stands opposite of me in a soldier’s uniform — why would that be? What is it that allows me to kill a soldier, while I am not allowed to kill anyone else?
Why is killing soldiers in war permissible?
I could perhaps try to argue that a soldier poses a threat to my own life, so killing a soldier who is about to kill me is an act of self-defence, and should therefore be permissible. But today’s war is often fought with rockets over great distances. When the enemy fires a rocket and kills a soldier miles away, they cannot argue that this soldier posed any real threat to them. So then, why was it permissible to fire that rocket?
They might try to justify it by saying that the soldier, by freely signing up to be a soldier, has already accepted the possibility that they will be shot at, and therefore it is not immoral to shoot at them. It’s just an occupational risk of sorts. This would be similar to how the Fire Department can justify sending its firemen into a dangerous fire. The Fire Department can expect its firemen to risk their lives in a way that my University employer cannot ask of me. If my University is in danger of burning down, the University administration cannot ask me to risk my life to save it.
Maybe a soldier, by freely signing up to be a soldier, has already accepted the possibility that they will be shot at.
Why is this? Because, one might argue, the fireman has freely agreed to take on this job and it is an essential and well-known part of the job description that firemen have to enter dangerous situations when this is the only way to extinguish a fire. The same applies to the dangers policemen, divers and lifeguards face. You don’t take on such jobs if you are a risk-averse person. You do so fully knowing that a situation might arise in which your life might be endangered. And you accept that risk.
Now this sounds good, but we must be careful with this argument.
Did the civilians in Ukraine, who now pick up a gun to defend their country, freely agree to the risks involved? It doesn’t seem so. They are not all professional soldiers who made a career choice in times of peace. Many of them are computer programmers, truck drivers, taxidermists and accountants who felt that not defending their home country would expose them and their families to even more danger. So their choice is forced by the circumstances. A truck driver who picks up a gun when attacked is not a soldier who has freely accepted risk, but a person who has been forced to defend themselves against their will. And so the argument above would not apply to them.
The ethics of children soldiers and civilians
The discrimination requirement has more problems. In many wars, we have seen children picking up guns. What does this mean for the morality of war? Am I allowed to kill a child in war just because they are carrying (or even threatening me with) a gun? Even if it is in self-defence, can I justify killing a child? Or do I need to make an effort to, say, disarm it in a way that would remove the threat without actually taking its life?
In many wars, we have seen children picking up guns. What does this mean for the morality of war?
Connected with this, of course, is the next question: what is different about children in war? Isn’t anyone with a gun an enemy I can use lethal force against? Why should age matter?
There are many reasons one could think of. For example, children may not clearly understand what killing means. They might not understand the finality or the consequences of it for others (the dead soldier’s family). They might not understand the goals of the particular war. They might not be able to judge the morality of that war. They might be at a disadvantage because they don’t have fighting experience, which their enemy might have. And so on. But in the end, if it’s me against the child, and the child is ready to shoot me, am I justified in shooting first?
Not only children cause such moral dilemmas.
What about civilians who are not directly part of the hostilities? In the Second World War, women were mostly at home, while men were fighting. But German women, for example, were often occupied as workers in munition factories, or supplying the fighting men with clothing items that made it possible for them to fight in the snows of the Russian front. Can we then so clearly distinguish who is a combatant and who is not?
And what about fighters who are not regular soldiers, but what we might call “terrorists” (or, as they would probably label themselves, “freedom fighters”?) From the IRA and the German RAF to villagers supporting the resistance in WW2 France or Greece, involvement in combat often comes in degrees, and often combatants don’t wear any uniforms or other distinctive signs.
The Ukraine Conflict and the Ethics of War
What are the moral rules for war, how can wars be justified and are we obliged to help a country that has been attacked? Just War Theory applied to the current conflict in the Ukraine.
One could argue that civilians should be protected because they are innocent, vulnerable and defenseless. But, as we saw, this is not always the case. And even if they are, individually, vulnerable and defenseless, they are still part of a war machine that requires their cooperation, and, as such, they are not innocent. One argument could be made (and has been made) that the German population during Nazi times has not been innocent. They knew more or less what was happening and they did support their government. Hitler could not have ruled without all the “normal” people who supported him and who executed his orders. The same could be argued about any government today. Whether it is an autocratic state like Russia or a social democracy like Sweden, every state requires some amount of cooperation from its subjects in order to be able to exist. To this extent, then, its citizens are complicit in the actions of that state.
So discrimination, although a good idea in an ideal world, is, in the messy reality of our world, often difficult to achieve.
“The use of force is proportionate when the harm done is counterbalanced by the good achieved in averting a threat. To determine this, we typically compare the candidate course of action with what would happen if we allowed the threat to eventuate.” (Stanford Encyclopedia of Philosophy, War.)
This can also be pretty difficult to judge, particularly since “good” is such a subjective measure. For the Russian attackers, a Russian Ukraine and the removal of the NATO threat is presumably a “good” thing. For the Ukrainian defenders of their country, keeping the occupying force out is “good.” Each one could argue that the other side is not justly engaging in war, because their actions are not proportional: they don’t promote any “good” (as seen from the other side’s point of view).
Proportionality can be useful when we judge strikes against particular targets, especially civilian ones. Bombing a hospital will rarely be seen as proportional, since the resulting harm is not counterbalanced by any good outcome. After all, the hospital did not pose a threat.
Bombing a hospital will rarely be seen as proportional, since the resulting harm is not counterbalanced by any good outcome.
On the other hand, something like the attempted assassination of Adolf Hitler in the 20th July plot might be considered proportional: the harm consists in killing a number of generals and the dictator himself; the expected benefit would be the end of the World War and peace with the Allies. Here, the expected benefits clearly would outweigh the harm done.
The problem is not only that it is largely subjective what a “harm” is; but also that we cannot see the future. In judging whether an action is permissible, we are required to calculate the expected benefit of the action before the action has taken place. And this can be very hard to do.
For example, ruthless and decisive bombing of an enemy’s cities might be motivated by the wish to break the enemy’s will to fight and to reach a faster peace (as the Allies did with the bombing of Dresden, for example). On the other hand, one might argue that the harm caused through the bombing of a civilian population can never be outweighed by any military objective.
Finally, the necessity criterion requires us to make sure that an act in war is necessary to achieve a particular outcome.
Why necessity is not enough
This is quite a weak requirement as a moral guideline, because it reduces the issue to a question of means: It is necessary to do X in order to achieve Y?
What it does not ask is: Is it morally right to pursue Y in the first place? – But this question is the one where the disagreement between different parties in the war would arise.
The necessity criterion requires us to make sure that an act in war is necessary to achieve a particular outcome.
Let’s assume it is necessary to bomb Kiyv in order to achieve the surrender of Ukraine. Does this make bombing Kiyv right? No, because we have to ask first whether the goal of achieving the surrender of Ukraine is a good goal. And here we’re back to the questions asked in the previous article, about what a good, moral reason to enter a war would be.
Often, necessity is understood in very narrow, technical, military terms. “It is necessary to bomb this hill in order to take that valley.” This surely is not a sufficient justification for an action in war. Arguing like this shifts the weight of the moral decision from the means to the goals of the action, and we would have then to question whether those goals are ethical.
In an unprovoked war of conquest, like the one in Ukraine seems to be, it would probably be difficult to justify any aggressive action of the Russian side by citing a “necessity,” since the whole war might be said to lack necessity.
This would be different in wars where not engaging in the war would bring about greater harm, for example when the Allies entered the war against Germany in 1941. Here, it could be argued that not engaging the Nazi state would, in the long run, cause greater harm.
Is it “necessary” to defend Ukraine’s independence?
The question is trickier when we look at the Ukrainian defenders. Are their actions “necessary”? Are they justified in their use of lethal force against the attackers?
As much as one would like to postulate a right for every country to defend its territory, things are not so clear here. After all, one might argue, Russia itself was originally part of Ukraine if we go back long enough to the times of the Kievan Rus' (9th-13th centuries). Kiyv has been part of Lithuania in the 14th century, then part of Poland. As the Krimean Khanate, Mongol-led Ukraine captured and devastated Moscow in 1571. In the 19th century, Ukrainians emigrated in great numbers to the Russian Empire. In the First World War, Ukrainian soldiers fought both with the Russian and the Austro-Hungarian armies. In 1919, Ukraine was divided, and part of was given to Poland, while the rest became part of the Soviet Union. It was only in 1990/91 that Ukraine became independent, and even then there always was a tension between those parts of the Ukrainian population who wanted closer ties to Russia and those who wanted to become part of the EU.
This complicated history and the relatively recent independence of Ukraine is what makes it difficult to say whether defending this independence is really “necessary” or proportionate considering the harms involved to the civilian population of Ukraine itself. Assuming (which is not certain to be the case, but assuming it for the moment) that after the participation of Ukraine into a long-term cooperation and peace treaty with Russia its population could live in peace and the whole war would not have taken place, is it still justifiable to resist such an agreement? On the other hand, if we argue like this, we could justify submitting to many kinds of bullying and violence that we don’t normally accept.
One must make a choice, whether one looks strictly at the consequences of acts or also at the general principles behind moral actions.
Probably here one must make a choice, whether one looks strictly at the consequences of acts or also at the general principles behind moral actions. Sometimes, submitting to force, even if it is not justifiable, might bring about better consequences than resisting it. For example, when one is the victim of an armed robbery, giving away one’s money to the robber might be the most prudent action in terms of the expected consequences. On the other hand, this would mean submitting to the injustice of the robbery. If we consider the principles of freedom and justice to be more important than minimising the harm caused by the robbery, then resisting it (and likely getting harmed or killed) might seem like the more ethical choice.
This is a dilemma that goes back to the roots of our moral fabric, and that cannot really be resolved in an argumentative way. In the end, it is a personal choice: how important is my freedom to me? How important is it to me not to give in to bullying and unjustifiable force? Am I the person who would keep silent, obey, and, in the end, achieve better consequences because of that; or am I the kind of person who will fight against injustice, even if that means that I will suffer or die in the process?
Philosophy cannot help make this decision.
Thanks for reading! You can subscribe so you yon’t miss the third part of this series where we will talk about the ethics of Double Effect in war! If you enjoyed this article, please share it with a friend! Cover image by Simon Infanger on Unsplash.
 Lazar, Seth, “War”, The Stanford Encyclopedia of Philosophy (Spring 2020 Edition), Edward N. Zalta (ed.), available online.