The Ethics of War

1
The Ethics of War

• 5.forelesning

2
Summary of discussion

• The Discrimination Principle
• Civilians and soldiers have different legal
  standing
• Do they also have different moral standing?
• To alternative answers
• Yes, because soldiers are threats
• No, because what matters is whether the cause is
  just or unjust

3
Different approaches

• Symmetry thesis Moral standing depends on
  physical threateningness. Soldiers are physical
  threats. Civilians are not. Equality of soldiers
  on just and unjust side.
• Asymmetry thesis Moral standing depends on (a)
  collective guilt , or (b) responsiblity. Soldiers
  are guilty/responsible for the wars they fight.
  No equality of soldiers on just and unjust side.
  

4
Civilians and asymmetry thesis

• Responsibility doctrine Threat responsibility.
  Both necessary, neither sufficient conditions for
  loss of immunity. Can maintain civilian immunity
  on both sides.
• Guilt doctrine Threat indication of guilt, guilt
  necessary and sufficient condition for loss of
  immunity. Cannot maintain civilian immunity on
  both sides (with exceptions)

5
The orthodox/conventionalist view

• it is always wrong to kill the innocent
• non-innocence is an upshot of being engaged in
  harming
• the relevant harming is material, not culpable
• non-innocence implies a loss of immunity (McMahan
  1994).

6
Paradigmatic case of justified self-defence

• When one is attacked by someone who is culpably
  responsible for creating the situation of forced
  choice between lives

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Self-defence against innocent threats

• According to the conventionalist view
• Soldiers are innocent threats
• Soldiers have forfeited their right not to be
  attacked in virtue of being threats
• Soldiers have a right to kill each other because
  they are threats
• How do we justify killing innocent threats?

8
Gruppearbeid
9
Innocent aggressor

• A psychotic man comes towards you with an axe.
  Voices in his head tell him that your are Satan
  incarnated and he believes it to be his duty to
  annihilate you. He aims at you with the intention
  to kill you.
• Are you permitted to kill him in self-defence?
  Is he permitted to counter-defend himself against
  you? Why/not?

10
Innocent threat

• You are laying on your deck, sunbathing. A fat
  man is sitting in the cliff-top park above your
  house. Suddenly he rolls of his chair and falls
  toward you. If he hits you he will crush and you
  will die, but by falling on you he will save his
  life. Your only chance to save yourself is to
  change the direction of your awning and deflect
  him down to the road where he will die.
• Are you permitted to change the direction of
  your awning? If the fat man had a remote control
  to your awning, would he be permitted to use it?
  Why/not?

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Two approaches to self-defence

• Self-defence as a symmetrical right
• Self-defence as an asymmetrical right

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Self-defence as symmetrical right

• When our bodies are violently attacked with
  danger to our lives, and there is no other way of
  escape, it is lawful to fight the aggressor, and
  even to kill him we must note that this right
  of self-defence derives its origin primarily from
  the instinct of self-preservation, which nature
  has given to every creature, and not from the
  injustice or misconduct of the aggressor.
  Wherefore, even though my assailant be guiltless,
  as for instance a soldier fighting in good faith,
  or one who mistakes me for someone else, or a man
  frantic with insanity or sleeplessness () in
  none of these cases am I deprived of my right of
  self-defence (Hugo Grotius)

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Problems with symmetrical self-defence

• Fails to distinguish between different types of
  aggressors
• Counter-intuitive results
• Doctrine of self-preferment
• Leads to a reductio ad absurdum?

14
Self-defence as an asymmetrical right

• To have a right of self-defence means that the
  aggressor has no right of counter-defence
• Two descriptions must be true
• (1) if Victim does not kill Aggressor, Aggressor
  will kill Victim
• (2) the attack on Victim is unjust

15
Self-defence as particular form of forced choice
between lives

• Demarcates self-defence from other situations of
  forced choice between lives
• Demarcates legitimate from illegitimate
  self-defensive acts

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Intrinsic features of right of self-defence

• Proportionality
• Necessity
• Immediacy

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Analysing the case of Innocent Aggressor and
Threat

• Two competing interpretations
• Extended Self-defence Doctrine (ESD)
• Narrow Self-Defence Doctrine (NSD)

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Shared assumptions ESD and NSD

• Aggressor and Threat are non-responsible threats
• Aggressor and Threat are morally on a par (no
  relevant difference between the cases)
• The right of self-defence is asymmetrical no
  right of counter-defence
• To have a right of self-defence, the initial
  attack must be unjust
• An attack on a person A is unjust if..
• A has a right not to be killed and has done/is
  doing nothing to lose her right not to be
  attacked

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The argument for the Extended Self-Defence
Doctrine

• Part I
• I have a right not to be unjustly killed
• Fat man has no right to kill me
• Therefore, if he kills me, he does so unjustly
• Part II
• I have a right of self-defence against unjust
  threats to my life
• Therefore, I have a right of defence against the
  Fat Man
• The right og self-defence implies a non-right of
  counter-defence
• Therefore, the Fat Man has no right of
  counter-defence

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The argument against the ESD (NSD)

• PART I
• To have a right always implies that someone has a
  correlative duty
• Any violation of a right is at the same time a
  violation of a duty
• An attack or threat can only be unjust if it is a
  violation of a duty
• A non-responsible threat cannot violate a duty
• Therefore, the Fat Man cannot threaten me
  unjustly
• PART II
• Any right of self-defence must be response to an
  unjust threat.
• Fat Man is not an unjust threat
• Therefore, I have no right of self-defence
  against Fat Man
• Therefore, there is no non-right of
  counter-defence on the part of the Fat Man.

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Moreover

• Does the Fat Man case fall under the description
  If A does not kill B, B will kill A?
• Does the Axe Murderer?
• Is kill an appropriate term?
• In the sense we can say He got killed by a
  falling stone or A tiger killed her, the term
  is appropriate.
• But stones and tigers cannot violate rights
  because they are not the subject of duties.
• If Fat Man poses a threat in virtue of being a
  lethal object merely by being causally
  threatening, like the stone.
• and the Axe Murderer poses a threat in virtue of
  being a lethal object merely by being causally
  threatening like the tiger
• .. it may be correct to say they will kill me,
  but not that they will kill me in a morally
  relevant sense..
• They will not kill me unjustly because in the
  circumstances, neither Fat Man nor Axe Murderer
  are moral agents
• They do not fall under the class of entities who
  can threaten or kill someone unjustly

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Possible objections to the common assumption

• Axe murderer acts with intent. Fat Man does not
  act at all
• Axe Murderer intends to kill me and will pursue
  me if I try to run. Fat Man will not.
• But Axe Murderer is not responsible for forming
  the intent.
• If Fat Man uses remote, he ceases to be
  non-responsible threat. If Axe murderer fights
  back, he does not cease to be innocent threat.

23
Justifying intuitions

• I am permitted to move away (intuitively correct)
• I am permitted to change my awning (???)
• I am permitted to use a ray-gun against the fat
  man (Nozicks well case) (counter-intuitive. To
  me ?).

24
Moving away

• I have no duty to stay put because
• I have no duty to sacrifice myself for Fat Man
• Therefore, I have a right to move away
• Implication Fat Man has no right to glue me to
  my sun-bed (if he has a magic wand and knows the
  petrificus totalis spell)

25
Using a ray-gun

• I am not permitted to use a ray-gun to dissolve
  the Fat Man because
• Fat Man has done nothing to lose his right to
  life, hence I have a duty not to kill him.
• To use the ray-gun is the same as killing
  (murdering) him, rather than letting him die
  (which I do if I move away)
• Therefore I have no right to use the ray-gun
• Implication Fat Man has a right to defend
  himself against my ray-gun

26
Turning the awning

• A matter of killing or letting die?
• Is it relevant that I change the direction of Fat
  Mans fall?
• Harms should lie where they fall
• But if so, why can I move away?
• Suggested conclusion The case is indeterminate.
  Neither of us have a right of defence against the
  other, and neither has a duty of self-sacrifice.

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A pluralist view of self-defence

• In ordinary self-defence, the permission applies
  asymmetrically. That is, in every case where the
  attacker is culpably responsible for initiating
  the choice between lives, the guilt of the
  aggressor tips the balance. Only in these cases
  can we speak of a proper right of defence,
  implying a non-right of counter-defence.
• In cases of innocent threats, the permission
  applies symmetrically. No party is justified,
  merely excused for defending themselves. Weak
  permission

28
Self-defence and war

• How can self-defence apply to war, ad bellum and
  in bello?
• Depends on whether soldiers are innocent
  aggressors or not
• And that, in turn, depends on whether or not they
  are individually responsible for the wars they
  fight.

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Oppgaver til neste gang

• Oppgave 1 Argumentèr for Nagels påstand
• If the participation in war X is entirely wrong
  to begin with, then that engagement is incapable
  of providing a justification for any measure
  taken in its pursuit (Nagel, 123)
• Oppgave 2 Argumentèr for Walzers påstand There
  is a licence for soldiers, and they hold it
  without regard for which side they are on. They
  are entitled to kill, not anyone, but men they
  know to be victims (Wars, 36)