The Ethics of War

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The Ethics of War

• 11.Forelesning

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(No Transcript)
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• What if an international terrorist planted a
  nuclear bomb somewhere in Manhattan, set to go
  off in an hour and kill a million people. You've
  got him in custody, but he won't say where the
  bomb is. Is it moral to torture him until he
  gives up the information? (The Slate, 13.12.05)
• Torture is inefficient
• Hard cases make bad law!

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The War on Terror as supreme emergency?

• Does the threat of terrorism constitute a supreme
  emergency?
• Supreme emergencies apparently justify setting
  aside jus in bello rules (non-combatant immunity)
• But only if the political community is severely
  threatened as to its very existence
• But how do we interpret that? The scope? The
  gravity?

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Side-effects of construing terrorism as supreme
emergency

• Legitimizes torture
• Legitimizes setting aside civil and human rights
• Oppressive states use the terrorism excuse to
  justify hard treatment of legitimate minority
  claims and get support! Russland/Tsjetsjenia,
  Israel/Palestina

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Ex The commander-in-chief override

• John Yoo congress can place no limits on the
  Presidents determinations as to any terrorist
  threat, the amount of military force to be used
  in response, or the method, timing and nature of
  the response
• (David Luban, The defense of Torture, The New
  York Review, 14 February 2007)

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The Torture Memo

• Inflicting physical pain does not count as
  torture unless the interrogation specifically
  intends the pain to reach the level associated
  with organ failure or deathinflicting mental
  suffering is lawful unless the interrogator
  intends it to last months and years beyond the
  interrogation..
• (David Luban, The defense of Torture, The New
  York Review, 14 February 2007)

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Terrorism War or crime?

• Yoos basic argument
• The struggle against Al Qaeda is a war, not law
  enforcement
• Therefore, the Presidents powers as
  commander-in-chief overrides civil law
• The battlefield is everywhere!
• And eternal?

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War or crime? is important because

• The way we conceptualize terrorism determines
• Who has the power(s) to decide on the means
• What the proper means are
• How to treat the offenders (i.e. their legal
  status)

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Luban

• The war on terror is a war, not law enforcement
• September 11th was a military campaign, not a
  criminal act
• Al-Qaedas terrorism is politics by violent means
  ( Clausewitzs definition of war)
• AQs ends are geopolitical

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Luban against Yoo

• War against terror is a new kind of war
• Traditional presidential war powers apply
  (inlcuding, now, the power to interpret Geneva
  Convention!)
• But that is a contradiction, because presidential
  powers are designed for traditional war a
  limited conflict regulated by treaties and
  demarcated by uniforms.
• Problems with the new war
• When does it end? (POWs)
• How do we distinguish it from peace? (cf. open
  declaration!)
• Mix of war and peace, military and civilan law

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Acts of terror in war

• Link to JWT Double effect
• Terror bombing versus tactical bombing
• Intentional targeting of non-combatants in order
  to win military advantage by undermining morale
  or bring war to rapid end (nb!)
• Examples Dresden, Berlin, Hiroshima, Nagasaki
• Is this the same phenomenon as terrorism outside
  of the conventional war context?
• Depends on definition of terrorism..

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What is terrorism?

• Searching for a definition
• What characterises the phenomenon?
• What are its special features?
• Delienate terrorism from other types of violent
  acts
• Is terrorism always a moral wrong?

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Types of definitions

• Tactical/operational
• Teleological
• Agent-focused (political status)
• Object-focused (victims)

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Tactical/operational definitions

• Weapons used
• Who can be the targets of terrorist acts?
  Persons? Property?
• Mode of deployment
• Indiscriminate?
• Random?

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Teleological definitions

• Focus on end/goal
• Political purposes
• Instilling fear (the terror of terrorism)
• Coercion

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Agent-focused definitions

• Focus on the nature of the agent
• Non-state actors (Revolutionaries, Walzer)
• US State Dept definition .. Sub-national or
  clandestine groups
• Political status definition ex hypothesi
  impossible for state actors to commit terrorism!

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Object-focused definitions

• Attacks against innocent/non-combatant/neutral/civ
  ilian

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Coadys definition

• The organized use or threat to use of violence
  to attack noncombatants or innocents (in a
  special sense) or their property for political
  purposes
• Tactical definition? Rather a combined tactical
  object-focused teleological def. But also
  agent-focused element? Organized!
• Implications
• states can commit terrorist acts
• Not all non-state actors committing political
  violence are terrorists.

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Goodins definition

• Aims to answer What is the distinctive moral
  wrong of terrorism? (non-reducible to killing,
  maiming, etc)
• Def Acting with the intention of instilling
  fear in people for ones own political advantage
  
• Also a tactical definition, with teleological
  elements
• Note that it has neither agent- nor object
  focused elements!

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Rodins definition

• Terrorism is the deliberate, negligent or
  reckless use of force against non-combatants, by
  state or nonstate actors for ideological ends and
  in the absence of a substantively just legal
  process

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Comparing the definitions

1. Shared Political/ideological purposes
2. Shared non-agent focus
3. Not shared Violence/force
4. Not shared Emphasis on terror (fear)
5. Not shared Emphasis on intentions
6. Not shared Emphasis on effects